From the Washington Post:
“Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.
Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said. (…)
Under one White House draft that was being discussed this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system.
Such detainees — those at Guantanamo and those who may be captured in the future — would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge.”
This is a very puzzling article. It has some good news: for instance, that Obama has rejected the idea of national security courts. This is good: the idea of trying to construct an entire new set of courts, all of whose procedures could be litigated until eternity, is crazy, and why we need a new court system has never been adequately explained. If the administration has rejected that, that’s good news.
Then there’s this:
“One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.
“Going forward, unless it’s an extraordinary case, you will not see new transfers to the U.S. for indefinite detention,” the official said.”
Ken Gude of the Center for American Progress comments:
“Congress has already approved traditional law of war detention in the Authorization to Use Military Force of 2001. The Supreme Court sustained military detention authority of those detainees captured in zones of active combat in 2004 in Hamdi v. Rumsfeld, so President Obama is on firm legal ground should he choose to limit military detention to those circumstances. (…)
This would be a significant shift from the Bush administration’s policy that swept into U.S. military detention virtually anyone suspected of terrorist activity captured anywhere in the world. It would restore the bright line between criminal and military detention, a crucial distinction to preserve not just in the United States, but also in other countries that look to or use the U.S. as an example.”
That’s not entirely right, I think. First, I’d like to see a very clear definition of “the battlefield”, to prevent future reversions to Bush’s doctrine that it was the entire world. This should not be left up to the discretion of the President. Second, this allows for exceptions to the rule that future detainees will be either held as prisoners of war, transferred to the US for trial, turned over to local authorities, or sent home. Those exceptions should not be “rare”, or reserved for “extraordinary cases”; they should be nonexistent.
Finally, of course, there’s that little bit about “going forward”. Those detainees that the administration believes that it can neither try nor release could be held indefinitely, according to this policy. That is, of course, the elephant in the room. And it’s just wrong.
In this country, we have what we call “laws”. When you break a law, you can be tried, and, if the government can prove your guilt beyond a reasonable doubt, you can be sent to jail. If the detainees in question have not actually violated any laws, then it’s hard to see why we propose to detain them. If they have, and we cannot prove it beyond a reasonable doubt, then we should ask: why not?
If we don’t have convincing evidence against someone, we should not detain him. If we do have such evidence, but it was obtained under torture and the person we tortured will not repeat it in court, then it is unreliable. If we have evidence, but revealing it would compromise “sources and methods”, then we’re in a pickle, but not an insoluble one. We might allow a judge to review that evidence in camera. We might decide that convicting this person is worth compromising some of our secrets. We could try to find more evidence that we could disclose. But we do not get to just detain someone indefinitely.
No President should have that power. Period.
I sympathize with Obama’s not wanting the Congress to pass legislation on this topic. They have been horrible on these issues so far, and I see no reason to think that they would change. (And, yes, Obama has been awful too, but the Congress has been even worse.) If he somehow has to obtain the power to detain people indefinitely, and it’s legal to do it via executive order, fine.
I also don’t envy him the politics of it. Obviously, if some released detainee commits an act of terror against the US, all hell will break loose. And the costs of that will not be purely political: people might not get health insurance, or we might be unable to act on global warming, if some released detainee decides to blow himself up in an American city. I wish that my fellow citizens were also moved by the wrongness of keeping people who might be innocent locked up without recourse, but apparently not enough of them are.
But that doesn’t make it right. Obama doesn’t have to do this. The rule of law is one of our most basic values. It underwrites the freedoms that we go on and on about, but are apparently unwilling to risk much of anything to preserve.
Shame on him if he does this. And shame on us.