Just Shoot Me Now
I liked most of Obama’s speech. If it weren’t for that one little bit about preventive detention, I’d be as happy as a clam. But there it was:
“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.
Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.”
Let’s start with the good part. If we have to have preventive detention, it ought to be subject to the kind of oversight Obama is talking about. There should be rules. There should be checks and balances. I like that part.
But that’s like saying: if we have to have censorship or prohibitions on particular religions, they ought to be subject to judicial oversight. Yay for judicial oversight. Hurrah for explicit legal frameworks. Whoopee. That said:
No. Wrong answer.
If we don’t have enough evidence to charge someone with a crime, we don’t have enough evidence to hold them. Period.
The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don’t have enough evidence, that’s a problem, but it’s also a problem with detaining them in the first place.
What puzzles me even more is this, from a New York Times story about this:
“The two participants (…) said Mr. Obama told them he was thinking about “the long game” — how to establish a legal system that would endure for future presidents.”
The long game? If we have a need for preventive detention, which I do not accept, it’s a short-term need produced by Messrs. Bush and Cheney. The long game is the preservation of our republic. It is not a game that we can win by forfeiting our freedom.
People seem to be operating under the assumption that there is something we can do that will bring us perfect safety. There is no such thing. We can try our best, and do all the things the previous administration failed to do — secure Russian loose nukes, harden our critical infrastructure, not invade irrelevant countries, etc. — but we will never be completely safe. Not even if we give up the freedom that is our most precious inheritance as Americans.
Freedom is not always easy, and it is not always safe. Neither is doing the right thing. Nonetheless, we ought to be willing to try. I wish I saw the slightest reason to believe that we are.