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Problems With Preventive Detention

By Dan Froomkin
1:10 PM ET, 05/22/2009

There is one big difference between how George W. Bush indefinitely detained suspected terrorists without charges and the way Barack Obama endorsed yesterday: Obama wouldn't go it alone.

"In our constitutional system, prolonged detention should not be the decision of any one man," Obama said.

At issue is what to do about, in the president's words, "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." People who have "made it clear that they want to kill Americans...who, in effect, remain at war with the United States."

Said Obama: "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...

"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."

All that may sound like a big step up from the unilateral, absolutist path Bush pursued. And in some ways, it certainly is.

But -- after torture -- indefinite detention without charges was the Bush administration's most radical departure from traditional American legal principles. It's hard to see how Obama and Congress could set up a process that would make it okay. Indeed, you could argue that trying to codify it and normalize could actually make it worse.

Another term for this is preventive detention. The government would hold people indefinitely not because of something they did, but because of what they might do.

Obama's remarks on this issue were by far the most alarming of several deeply troubling bits in his otherwise soaring speech about national security and American values yesterday.

Here is MSNBC host Rachel Maddow last night, talking about the "two speeches" Obama gave. "One speech that could have been billed as a ballad to the Constitution -- a proclamation of American values, a repudiation of the lawless behavior of the last administration. And another speech -- announcing a radical new claim of presidential power that is not afforded by the Constitution and that has never been attempted in American history, even by George W. Bush and Dick Cheney."

She approvingly shows video of Obama criticizing Bush for his "ad hoc legal approach." But moments later, Maddow said, Obama announced "his own ad hoc legal approach for fighting terrorism....

"We will incarcerate people preventively -- preventive incarceration. Indefinite detention without trial. That's what -- that's what this is. That's what President Obama proposed today if you strip away the euphemisms....

"How can a president speak the kind of poetry that President Obama does about the rule of law and call for the power to indefinitely, preventively imprison people because they might commit crimes in the future? How can those two things co-exist in the same man, even in the same speech?"

Glenn Greenwald writes for Salon that "once you accept the rationale on which this proposal is based -- namely, that the U.S. Government must, in order to keep us safe, preventively detain 'dangerous' people even when they can't prove they violated any laws -- there's no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly 'dangerous' combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S."

He proposes some excellent questions for the Obama administration and its defenders:

"Bush supporters have long claimed -- and many Obama supporters are now insisting as well -- that there are hard-core terrorists who cannot be convicted in our civilian courts. For anyone making that claim, what is the basis for believing that?

"For those asserting that there are dangerous people who have not yet been given any trial and who Obama can't possibly release, how do you know they are 'dangerous' if they haven't been tried? Is the Government's accusation enough for you to assume it's true?..

"Finally, don't virtually all progressives and Democrats argue that torture produces unreliable evidence? If it's really true (as Obama defenders claim) that the evidence we have against these detainees was obtained by torture and is therefore inadmissible in real courts, do you really think such unreliable evidence -- evidence we obtained by torture -- should be the basis for concluding that someone is so 'dangerous' that they belong in prison indefinitely with no trial?"

So what are we supposed to do? Just let these people go?

Why not, suggests blogger Digby: "There are literally tens of thousands of potential terrorists all over the world who could theoretically harm America. We cannot protect ourselves from that possibility by keeping the handful we have in custody locked up forever, whether in Guantanamo or some Super Max prison in the US...

"There is not some finite number of terrorists we can kill or capture and then the 'war' will be over and the babies will always be safe. This whole concept is nonsensical."

Sheryl Gay Stolberg writes in the New York Times: "The answer proposed by Mr. Obama would write an entirely new chapter in American law to permit 'prolonged detention' — just as at Guantánamo, but with oversight by the courts and Congress. Human rights advocates express outrage at that approach, however, saying it would violate the very civil liberties Mr. Obama, a former lecturer on constitutional law, has vowed to protect.

"'It is very troubling that he is intent on codifying in legislation the Bush policies of indefinite detention without charge,' Anthony D. Romero, executive director of the American Civil Liberties Union, said after the speech. 'That simply flies in the face of established American legal principle.'"

Obama's strongest argument for indefinite detention is that, as he repeatedly noted yesterday, Bush left him a real mess to deal with. Torture and incompetence has rendered unprosecutable any number of potential cases. And even detainees who weren't hardened enemies of the United States before being subjected to years of isolation, sleep deprivation, stress positions, threatening dogs, forced nakedness, and exposure to extreme heat and cold could well bear us some pretty intense ill will at this point.

Peter Finn writes in The Washington Post: "Some human rights advocates criticized Obama for adopting the idea that some detainees are not entitled to a trial. Others said the president was boxed in by cases inherited from the Bush administration in which possible prosecution had been irretrievably compromised by coercive interrogation.

"The president stopped short of saying he would institutionalize indefinite detention for future captives.

"'The issue is framed pretty exclusively in terms of existing Guantanamo detainees,' said Tom Malinowski, the head of Human Rights Watch's Washington office. 'There is a big difference between employing an extraordinary mechanism to deal with legacy cases compromised because of Bush administration actions and saying we need a permanent national security regime.'

"But Michael Ratner, president of the Center for Constitutional Rights, said employing preventive detention simply because some cases at Guantanamo are too difficult to prosecute involves the kind of legal expediency that Obama said was a hallmark of his predecessor's policies....

"Even advocates of indefinite detention backed by judicial review, such as Jack Goldsmith, head of the Office of Legal Counsel in the Bush administration and now a law professor at Harvard University, recognize that such a system is deeply controversial because the war against al-Qaeda is indefinite, the likelihood of mistaken identity is much higher than in traditional warfare in which combatants wear uniforms, and many of those detained are citizens of allied countries that do not view the conflict as a war and regard terrorism as an exclusively criminal matter."

A gleeful Charles Krauthammer writes in his Washington Post opinion column that "flip-flops on previously denounced anti-terror measures are the homage that Barack Obama pays to George Bush. Within 125 days, Obama has adopted with only minor modifications huge swaths of the entire, allegedly lawless Bush program."

Krauthammer describes "the usual Obama three-step: (a) excoriate the Bush policy, (b) ostentatiously unveil cosmetic changes, (c) adopt the Bush policy." And he sees "an undeniable, irresistible national interest that, in the end, beyond the cheap politics, asserts itself. The urgencies and necessities of the actual post-9/11 world, as opposed to the fanciful world of the opposition politician, present a rather narrow range of acceptable alternatives....

"The Bush policies in the war on terror won't have to await vindication by historians. Obama is doing it day by day. His denials mean nothing. Look at his deeds."

David Brooks writes in his New York Times column that Obama has largely adopted Bush policies -- but not those of the early, Cheney-influenced Bush years, just the ones of the later years.

But Joe Klein writes for Time: "The difference between Obama and Cheney-Bush on national security and foreign policy issues is simply put: it's the difference between a moderate and an extremist, the difference between a leader and a bully."

Salon's Joe Conason thinks the big picture is still good: "Whatever the shortcomings of the present administration in restoring civil liberties and openness to government -- there are and will be many -- the commitment delivered again today by the president at the very least provides a benchmark for evaluating his performance and a restoration of the idea that Americans stand for fairness and decency. Methodically but eloquently, he described the dilemma that he confronts as a commander in chief who must protect the nation and its people against extremely malevolent enemies while respecting the democratic institutions that balance his power as well as the human rights of those same enemies. Not only is that approach the only way to remain true to his oath of office, the president said, but it is also the only way to effectively defend ourselves and our allies against those who would do us harm."

The New York Times editorial board writes: "For seven years, President George W. Bush tried to frighten the American public — and successfully cowed Congress — with bullying and disinformation. On Thursday, President Obama told the truth. It was a moment of political courage that will make this country safer."

The Washington Post editorial board writes: "By framing the matter in the context of war, Mr. Obama correctly acknowledged the limitations of traditional law enforcement tools and venues to contain and bring to justice those who would harm the United States. Yet he repudiated what he called the Bush administration's 'ad hoc,' the-ends-justify-the-means approach and spoke eloquently about the need to craft legitimate and effective legal structures that give meaningful rights to the accused while protecting the country's national security interests."

The issue of indefinite detention is of enormous constitutional significance. Obama also had some troubling things to say when it came to military commissions, the state secrets doctrine, transparency, and his lack of curiosity over what really happened during the last eight years. (See yesterday's item.) But most of the traditional media coverage -- especially on cable -- was stenographic and focused on the so-called "duel" between Obama and Cheney, who launched into his own speech at the American Enterprise Institute just moments after Obama finished up.

There was also a lot written about the political ramifications of Obama's speech. Peter Baker writes in the New York Times: "Arguably on the defensive over policy for the first time since taking office, Mr. Obama is gambling that his oratorical powers can reassure the public that bringing terrorism suspects to prisons on American soil will not put the public in danger.

"At the same time, he must explain and win support for a nuanced set of positions that fall somewhere between George W. Bush and the American Civil Liberties Union....

"Rather than an easily labeled program, Mr. Obama is picking seemingly disparate elements from across the policy continuum — banning torture and other harsh interrogation techniques but embracing the endless detention of certain terror suspects without trial, closing the prison at Guantánamo Bay, Cuba, but retaining the military commissions held there.

"'A surgical approach,' the president called it in his address on Thursday at the National Archives.

"But surgical approaches are rarely satisfying to those on either end of the political spectrum who tend to dominate political dialogue in Washington, particularly when it comes to an issue as fraught with emotional resonance and moral implications as the struggle against terrorists."

U.S. News reports: "Some commentators thought the President marginally helped his cause yesterday, but most said he appeared to have failed to change Senate Democrats' minds. On ABC World News, George Stephanopoulos, said that before the speech the President 'was losing ground on that issue. I think he froze Democrats in place right now. But he's going to have to come out with a plan quickly in order to turn that around in the Congress.' On NBC Nightly News, however, Andrea Mitchell said 'the President failed to put out this firestorm because his allies on the Hill still say he has not given them the details that they want.' CNN's Situation Room reported, 'Congressional Democrats remain frustrated with the President for putting them in a vulnerable political position by asking for $80 million to close Guantanamo without a plan for prisoners there.'"

Michael D. Shear writes for The Washington Post about how the speech developed, starting last week as "Obama paced the Oval Office, the debate about torture and detainees clearly weighing on him....For more than an hour...national security speechwriter Ben Rhodes scribbled down the president's thoughts, filling eight pages of a legal pad....

"Obama, aides said, believed that the administration was being forced by legal proceedings to make case-by-case decisions that were not understood by the public in the broader context of his attempt to shift the nation's conduct in the battle against terrorism."

And here are a couple related stories.

Carrie Johnson and Walter Pincus write in The Washington Post: "In news conferences, speeches and debates this week, lawmakers from both parties, as well as the director of the FBI, have sounded alarms about moving Guantanamo Bay detainees to federal prisons, where they could launch riots, hatch radical plots or somehow be released among the populace....

"But the apocalyptic rhetoric rarely addresses this: Thirty-three international terrorists, many with ties to al-Qaeda, reside in a single federal prison in Florence, Colo., with little public notice."

And Justin Elliott writes for TPM Muckraker that the New York Times has backed off its assertion in an Elisabeth Bumiller front-pager yesterday, in which she wrote that one in seven detainees released from Guantanamo "returned to terrorism or militant activity."

Elliott writes: "Appearing on MSNBC today, Bumiller said 'there is some debate about whether you should say 'returned' because some of them were perhaps not engaged in terrorism, as we know -- some of them are being held there on vague charges.'...

"The paper has changed the lead and headline of the Web version of the story to reflect the uncertainty."

Ken Gude writes for Thinkprogress: "An accurate story using this same information would report that some Guantanamo detainees have engaged in terrorism upon release, but that most of the allegations of such activity remain unconfirmed and that previous Pentagon reports have included activity that is not normally associated with terrorism."

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