By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends most of her time in Asia researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.
I noticed in yesterday’s comments that some readers take issue with my use of the term Obamamometer, regarding it as mere gratuitous snark. Unless you’ve read my earlier post, Don’t Be An Obamamometer: Support Naked Capitalism and Critical Thinking, describing behaviour for which I coined that word, you’ll not realize the term’s anything but gratuitous, and dates to the late 1980s– long before most (if not all) of you had encountered the man.
Allow me to quote a small section here:
We called him the Obamamometer or at least I did and it quickly caught on in our circle because it described his behavior so well. Near the end of class time, just in time for the last word, his arm would rise. He’d wait to be recognized. A pause— setting his audience on seat’s edge (or at least the ones who’d never heard him speak before), and then in his mellifluous voice, he’d intone, “Rain is wet”— or something equally banal, with the gravity otherwise due to a proposition from Wittgenstein.
Always the last word. Always uttered with utter conviction. And never, never– despite sitting through two classes with him– did I ever hear him say anything even remotely interesting. The Obamamometer took the ideological temperature of the room, and then unfailingly said something with which no one could possibly disagree— but which no other person would bother to say, because it was both so vapid and blindingly obvious.
So, other than an amusing anecdote, what does this imply for the Obamamometer’s toxic legacy on national security issues? Well, I rather encourage you to read that earlier post in full. But the main takeaway for the present post is this: “So when Barack Obama was elected President, and soon put in place an economic team consisting of former Clintonites and Rubinites, I and other [Harvard Law School (HLS)] classmates weren’t all too surprised by what followed. We saw those promises of hope and change as empty banalities, rather than the transitional political program many Obama supporters had voted for.”
How does that assessment stand up?
Now, many years later, we’re all enduring endless rounds of Obamamometer legacy-gilding. The man’s still actively seeking to have the last word. My sense of what an Obamamometer does has expanded a bit, extending now beyond merely uttering banalities, to willful substitution of empty rhetoric for substance. I’d like to examine that legacy with a more jaundiced eye, on some national security issues that progressives back in 2008 had so much hope would change. But first, please allow me a bit of a digression, in a bit of a riposte to some of yesterday’s comments.
The term Obamamometer isn’t a mere riff on the man’s name, but falls within a venerable literary tradition of using someone’s name to illustrate a broader concept. So, we have the term “spoonerism”, named for the former Warden of New College, Oxford, Reverend William Archibald Spooner, famous for employing what the Greeks called metathesis– roughly, switching things around. Examples: Spooner once praised farmers as “nobel “tons of soil” when he meant to say “sons of toil”, and reprimanded a student who “hissed my mystery lecture” and also “tasted two worms”.
Another such term is malapropism, describing utterances of Mrs. Malaprop, a character in Richard Brinsley Sheridan’s 1775 play The Rivals and a name no doubt derived from the French mal à propos— loosely translated as poorly placed. A malapropism is the substitution of a word that sounds similar for another, to comic effect. Examples: dance a flamingo (rather than flamenco), Yogi Berra’s comment that “Texas has a lot of electrical votes (rather than electoral), and my favorite– used once by a relative of mine who would not take kindly to being outed publicly so I won’t– to lambaste a real estate developer as “a real prefabricator ” (when she meant prevaricator). And last on the list, there’s also bowdlerize– a word I didn’t realize came from someone’s name until Lambert helpfully pointed out it that it originated with Thomas Bowdler (1754-1825), who published expurgated Shakespeare fit to be read by proper ladies and children (and which excised the naught bits).
My use of the term Obamamometer has broadened since I first observed the behavior at HLS. On the grander stage on which the man now plays, I now routinely extend it to apply to more toxic behaviour than mere banal, uncontroversial utterances: rhetoric– whether soaring or banal– as a substitute for action. And now as then, always trying to have the last word. This behavior– even if called by any other name that lacks the sense Obamamometer conveys of wary measurement– would still smell as foul.
Institutionalization vs Aberration
I’m not alone in recognizing that one of the biggest disappointments with the Obamamometer’s failure to break decisively with George W. Bush’s administration on key national security issues is to institutionalize positions that were formerly considered beyond the pale– and make them part of a twisted bipartisan consensus. This is a subject I’ve liked to reserve for a further post. I’m going to discuss two particular issues below, the failure to close Guantanamo– despite eloquent promises in the 2008 campaign to do so, and ample supporting legal authority– and weasel words disclaiming an ability to pardon Edward Snowden, uttered in a recent interview conducted in Germany. In both cases, the Obamamometer leaves a toxic legacy for President-elect Trump to exploit– which I have little doubt that he will.
One issue on which the Obamamometer was particularly eloquent in the 2008 campaign was on closing Guantanamo. As Connie Bruck has quoted him as saying in a New Yorker article, “In the dark halls of Abu Ghraib and the detention cells of Guantánamo, we have compromised our most precious values.”
Over to Bruck, writing in August (2016):
Guantánamo, which has held as many as seven hundred and seventy-nine prisoners, now houses just seventy-six. But it remains open, at a cost of $445 million last year—an expensive reminder that the United States, contrary to the ideals of its judicial system, is willing to hold people captive, perhaps for life, without a trial. For Obama, it is also painful evidence of the difference between the campaign promises of a forty-six-year-old aspirant and the realities of governing in a bitterly polarized time. Last March, when he made an appearance in Cleveland, Ohio, a seventh grader asked what advice he would give himself if he could go back to the start of his Presidency. Obama said, “I think I would have closed Guantánamo on the first day.” But the politics had got tough, he said, and “the path of least resistance was just to leave it open.”
The path of least resistance. Not much hope and change there, now is there? As of today, December 4, 2016, according to Closeguantanamo.org, 60 prisoners are still held, 21 of whom “have been recommended for release by high-level governmental review processes.” Think about that for a moment. We have indeed compromised our most precious values, especially when we still detain men who have already been cleared for release.
And, how difficult would it be to close the place down, now, despite the political consequences? After all, what political consequences is the Obamamometer subject to now? There’s no election pending. Would Republicans hunt down released detainees and reopen the place? I don’t think so.
I should mention here that the Obamamometer claims that he can’t just close Gitmo down, because Congress won’t let him. Does that claim stand up?
Let me quote from the work of another HLS ’91 classmate, now distinguished professor at the University of Chicago Law School, Eric Posner (son of noted legal scholar and sitting judge of the United States Court of Appeals for the Seventh Circuit, Richard Posner) writing in Slate in an article entitled President Obama Can Shut Guantanamo Whenever He Wants:
[In a 2013 press conference], President Obama repeated that he wanted to shut Guantanamo Bay but blamed Congress for stopping him. “They would not let us close it,” he said. But that’s wrong. President Obama can lawfully release the detainees if he wants to. Congress has made it difficult, but not impossible. Whatever he’s saying, the president does not want to close the detention center—at least not yet.
Posner goes on to make an extended, careful argument about just how this could be achieved. But notice, three years later, this has not yet been done. Why not? Well, as Posner anticipated in that same article:
The real issue here, of course, is that Congress has given the president a convenient excuse for not doing something he doesn’t really want to do anyway. The public wants to keep Guantanamo open. Shutting it would generate a serious backlash that enraged members of Congress would whip up. It also matters that President Obama does not object to indefinite detention, but to the island prison itself. That is why he wants to move detainees to a supermax in the United States, not release them. But doing so would make clear that his campaign promise to shut down Guantanamo Bay was an empty one. The place of indefinite detention would change; the system supporting it would not. He does better with headlines like “Congress, rules keep Obama from closing Guantanamo Bay” than with “Obama moves detainees to U.S. soil where they will remain forever.” The president will not shut Guantanamo, and the reason is politics, not law. If you don’t like this choice, blame him.
Posner’s not the only law professor to suggest that the Obamamometer could close Guantanamo immediately, if he wished to do so. As Andy Worthington has written recently in Donald Trump and Guantánamo: What Do We Need to Know?
For NPR, Rosa Brooks, a Georgetown University constitutional law professor and former Pentagon official, suggested Obama could still close Guantánamo without too much effort. “If President Obama wanted to close Guantánamo tomorrow, he could do it,” she said, explaining that he “should simply ignore the ban Congress has imposed on sending any Guantánamo detainees to the U.S. for detention or trial,” as NPR described it. In Brooks’ words, “If I were President Obama and I wanted to close Guantánamo, I would say, I regard this particular limitation as an unconstitutional infringement on my inherent powers as commander in chief. You know, thank you for your input, Congress, but I’m doin’ it.”
In another post in Slate, Legacy Time, Eric Posner concurs, resting also on the Obamamometer’s authority as commander-in-chief.
So, on the issue of Guantanamo, as of today, the Obamamometer’s legacy scores 1 for rhetoric and 0 for results– leaving the prison still open for business, with prisoners still detained– some of whom I emphasize have already been cleared for release– as President-elect Trump prepares to take office. The same Trump who’s said, as quoted in the Worthington link cited above, as saying at a campaign rally in Sparks, Nevada, “This morning, I watched President Obama talking about Gitmo, right, Guantánamo Bay, which by the way, which by the way, we are keeping open. Which we are keeping open … and we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up.”
On the issue of pardoning Snowden,the Obamamometer also displays his core weasaly tendencies. The American Civil Liberties Union, Amnesty International, and Human Rights Watch have launched a campaign to pardon Edward Snowden, following in the wake of the Snowden, the successful Oliver Stone film, and IMHO, the even better documentary, Citizenfour. This is a cause dear to many progressives– but is also highly politically controversial. Indeed, in September, all members of the House Select Committee on Intelligence– 9 Democrats and 13 Republicans– sent a letter denouncing Snowden and recommending against a pardon:
We urge you not to pardon Edward Snowden, who perpetrated the largest and most damaging public disclosure of classified information in our nation’s history. If Mr. Snowden returns from Russia, where he fled in 2013, the U.S. government must hold him accountable for his actions.
In a press conference on August 9, 2013, you said,” l don’t think Mr. Snowden was a patriot.” On September 15, 2016, after an exhaustive two-year review, the House Permanent Select Committee on Intelligence unanimously approved a final report entitled Review of Unauthorized Disclosures by Former NSA Contractor Edward Snowden. In short, we agree with you. Mr. Snowden is not a patriot. He is not a whistleblower. He is a criminal.
Now I happen to disagree with these statements, and instead believe that the Obamamometer should pardon Snowden. But I can admit that arguments can be made on the other side. The Obamamometer, however, doesn’t take a principled stand and make those arguments. Instead, in a recent interview conducted by Der Spiegel in Germany– where Snowden happens to be very popular– the Obamamometer responded to the simple question “Are you going to pardon Edward Snowden?” by outright misrepresentation (while simultaneously trying to pander to progressive opinion):
I can’t pardon somebody who hasn’t gone before a court and presented themselves, so that’s not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.
At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I’ve tried to suggest — both to the American people, but also to the world — is that we do have to balance this issue of privacy and security. Those who pretend that there’s no balance that has to be struck and think we can take a 100-percent absolutist approach to protecting privacy don’t recognize that governments are going to be under an enormous burden to prevent the kinds of terrorist acts that not only harm individuals, but also can distort our society and our politics in very dangerous ways.
The Obamamometer surely realizes this argument is nonsense. We sat in the same HLS constitutional law class together, were both among the many students who worked as research assistants during our time at HLS for the celebrated constitutional law professor Laurence Tribe, and the Obamamometer subsequently and famously taught constitutional law at the University of Chicago Law School.
As I’ve written earlier in Pardon Power: The Obamamometer’s Options, Article II, Section 2 of the United States Constitution says that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Allow me to quote from that earlier post:
The President’s pardoning power is absolute. Pardoning decisions are not subject to judicial review, nor can any individual pardon be overturned by an act of Congress. The pardoning power’s also unlimited as to offenses against the United States, so in theory, at least as a matter of law, a President could pardon someone for committing any offense against the United States ( I leave to one side the question of whether such an action would be politically possible). A President could also, at least in theory, pardon him or herself– for anything except in cases of impeachment.
But the most crucial point for the sake of the Obamamometer’s false statement about his ability to pardon Snowden is as follows:
It’s not necessary for someone to be charged or convicted of a crime against of the United States for the President to pardon that person. The most famous example of a President granting a pardon in a case where no indictment had been brought is President Gerald Ford’s September 1974 pardon of Richard Nixon shortly after he resigned the office of President.
In my earlier post on pardoning, I quote extensively from Proclamation 4311– Granting Power to Richard Nixon. And I encourage interested readers to follow that link to fill out their understanding of what the Obamamometer’s evidently forgotten.
So, on the issue of pardoning Snowden, not only is the Obamamometer’s rhetoric empty, but it’s factually incorrect– leaving Snowden’s fate open as President-elect Trump prepares to assume office. Snowden’s fate looks highly threatened, as expressed in a piece in The Intercept entitled: Obama Refuses to Pardon Edward Snowden. Trump’s New CIA Pick Wants Him Dead. And to make matters worse, some have mused that Vladimir Putin might be open to abandoning Snowden as part of a broader effort to repair relations with the United States.