Not a hard decision at all, actually

If Ben Wittes is indeed serving as an adviser to the Obama transition team, let’s hope the President-elect has the good sense not to listen to anything he has to say.

That Wittes would invoke Qahtani in support of his proposal for expanded detention authority is, in a word, astonishing. Qahtani — who U.S. officials believe may have been the intended “20th hijacker” — was subjected to perhaps the most meticulous and brutal torture protocol of any Guantánamo detainee: his “interrogation logs” for a 50-day period in 2002 and 2003, leaked to and published by Time magazine, make for harrowing reading. Qahtani was strapped down, injected with fluids, and forced to urinate on himself; he was subjected to prolonged sleep deprivation, often woken in the middle of the night by dripping water or blaring pop music; his head and beard were forcibly shaved; he was left naked in a frigid room and forced to stand for prolonged periods; he was sexually humiliated by female interrogators; he was menaced by dogs and was himself led around on a leash and forced to bark like one.

So far as Wittes is concerned, the Obama administration faces a “hard decision” about whether to maintain Bush administration policies regarding indefinite detention, military commissions, and coerced interrogations. (By this logic, I suppose Obama faces “hard decisions” as well about whether to maintain the Bush administration’s disastrous environmental policies; after all, it’s going to be very difficult to halt the approval of new oil and gas drilling sites, or to propose new fuel economy standards, or to keep mining companies from polluting the water, or to strengthen rules regarding the reporting of toxic industrial emissions, etc., etc.) For ordinary people, ejecting the Bush record is not a difficult decision at all. Of course, ordinary people probably wouldn’t argue that Bush v. Gore carries greater legitimacy than Roe v. Wade, either.

Jaffer and Wizner make an exceedingly sane case that the only “difficult” question is whether hand-wringers like Wittes and Jack Goldsmith will ever perceive the abomination of developing a new carceral system that essentially rewards the Bush administration for violating the law. It’s obvious, of course, that Bush will leave behind a vast, wrecked landscape when they leave office next month; cleaning it all up will take a generation of labor, but there’s no need to begin the effort by essentially ratifying a legal disgrace exceeded in the nation’s history only by the policy of Indian removal and the Japanese-American internment.