Predictable among the reactions to Barack Obama's speech at the National Archives yesterday are those, on the one side, presenting him as having simply adjusted George Bush's clothing, and those, on the other, according to which Obama's critics 'will remain his critics... but at least he explained his legal reasoning' - it being kept a secret for the time being whether this reasoning is open to any criticism at all.
For my money, Obama made a pretty good fist of setting out how he has attempted to deal with the difficulties inherited from his predecessor over Guantanamo and security, and how he has moved to distance himself, his administration and the US from a set of unjustifiable policies; but he could not disguise the fact - though he did not acknowledge it openly either - that in one regard at least he has retreated from a commitment he made at the beginning of his presidency.
The full text of the speech is here, and in it you will find the one, two and three of differentiation with the immediate past. One, renouncing the use of so-called enhanced interrogation techniques. Two, the intention to close the prison camp at Guantanamo Bay. Three, reviewing all cases that are pending there - and laying emphasis on the fact that this was not a mess of Obama's creation, that it was caused, not by his decision to close Guantanamo, but by Bush's decision to open it. These were all points very much to the point, and they were followed by Obama's one to five in terms of categories of prisoners: among them, those to be tried in federal courts, those to be released because that is what has been ordered by the courts, and those to be transferred to other countries.
The two remaining categories, however, deserve a bit more detail. There are, Obama said, 'detainees who violate the laws of war and are therefore best tried through military commissions'. And there are others who cannot be either tried or released:
[T]here remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here - this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
Specifying these two categories of prisoners and the way he now proposes to deal with them represents an acknowledgement on Obama's part that upholding America's 'fundamental values' - a commitment which he again reiterated - compatibly with looking out for the security of its people is different in a situation of war than it is in peacetime. That is not to say that anything goes when a country is at war. Not anything does go; and torture, in particular, does not. It is a peremptory norm of international law, which may not be abrogated in any circumstances. But it is to say that upholding certain ideals can be more difficult in war, and Obama has evidently come to the conclusion that the normal practice of trying detainees in non-military courts, or trying some of them at all, cannot prevail across the board and without exception. This amounts to a compromise between 'fundamental values' and what are being judged by Obama and his administration as necessities of security in war. To pretend otherwise only obscures things.
Incidentally, in referring as I have to a situation, and necessities, of war, I have not foisted upon Obama something foreign to his thinking. On the contrary, those assumptions are his own. They recur throughout the speech:
We know that al Qaeda is actively planning to attack us again. We know that this threat will be with us for a long time, and that we must use all elements of our power to defeat it.
We are... at war with al Qaeda and its affiliates.
Now this generation faces a great test in the specter of terrorism. And unlike the Civil War or World War II, we can't count on a surrender ceremony to bring this journey to an end.
Call it FKATWOT 21.