Balance of Power

But in hindsight, it appears that he was only against George W. Bush’s version of military commissions. Like the lawyer he is, he chose his words carefully — and left himself an escape clause he can use to defend today’s decision.

In September 2006, as the Senate debated the legislation that authorized the military commissions, Obama gave a floor speech that called the legislation “sloppy” because “we rushed it to serve political purposes instead of taking the time to do the job right.”

But the escape clause comes in the very next sentence. “I have heard, for example, the argument that it should be military courts, and not federal judges, who should make decisions on these detainees. I actually agree with that,” Sen. Obama said. “The problem is that the structure of the military proceedings has been poorly thought through.”

The rest of the speech gives a general idea of what Obama thought it would take to make the system right:

“Instead of allowing this president — or any president — to decide what does and does not constitute torture, we could have left the definition up to our own laws and to the Geneva Conventions, as we would have if we passed the bill that the Armed Services committee originally offered.

“Instead of detainees arriving at Guantanamo and facing a Combatant Status Review Tribunal that allows them no real chance to prove their innocence with evidence or a lawyer, we could have developed a real military system of justice that would sort out the suspected terrorists from the accidentally accused.

“And instead of not just suspending, but eliminating, the right of habeas corpus — the seven century-old right of individuals to challenge the terms of their own detention, we could have given the accused one chance — one single chance — to ask the government why they are being held and what they are being charged with.

“But politics won today. Politics won. The administration got its vote, and now it will have its victory lap, and now they will be able to go out on the campaign trail and tell the American people that they were the ones who were tough on the terrorists.

“And yet, we have a bill that gives the terrorist mastermind of 9/11 his day in court, but not the innocent people we may have accidentally rounded up and mistaken for terrorists — people who may stay in prison for the rest of their lives.”

Even on the campaign trail, Obama chose his words carefully when he denounced Bush’s system of military commissions. “As president, I will close Guantanamo, reject the Military Commissions Act and adhere to the Geneva Conventions,” Obama said in an August 2007 speech on terrorism. It may have sounded like candidate Obama promised to reject military commissions — but that’s not what he said.

So when President Obama suspended military commission proceedings right after taking office, civil liberties advocates may have hoped he would follow up by ending them entirely. Instead, it’s now clear he just wanted to use the time to change the rules.