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In a speech on national security
last Thursday at the National Archives, Pres. Barack Obama said he
would work with Congress to create a "legal framework" enabling the
indefinite detention of some detainees currently being held at
Guantanamo Bay. The announcement has prompted vocal criticism from
civil libertarians and prompted others to note remarkable similarities
between Pres. Obama's terror policies and those of the Bush
administration. What's more, critics assert that Obama' proposed legal
framework is not only unworkable, it sets a dangerous legal precedent
that could endanger the very liberties that the President swore he'd
protect.
Obama said that as he seeks to make good on his
promise to close the notorious Guantanamo Bay prison camp, preventive
detention might be the only option for a group of prisoners who, in his
words, "cannot be prosecuted yet who pose a clear danger to the
American people."
Who are these people?
The President described them as:
"[P]eople
who have received extensive explosives training at al Qaeda training
camps, commanded Taliban troops in battle, expressed their allegiance
to Osama bin Laden, or otherwise made it clear that they want to kill
Americans."
In a widely-cited, detailed attack
on Obama's legal reasoning, Salan's Glenn Greenwald argued a doctrine
of preventive detention could allow the government to cast a
dangerously wide net:
"After all, 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."
Greenwald
also scoffed at the claim that the detainees who would be targetted for
preventive detention can't be charged and tried, asking, "how do you
know they are dangerous if they haven't been tried?"
[PicApp_Gallery:id=7]
Propublica, the non-profit investigative research group, has a helpful backgrounder
by Chisun Lee with possible answers to that question. According to that
article, there are cases intelligence operatives have collected
evidence that a detainee is dangerous, but revealing that evidence in a
criminal trial would expose intelligence sources and methods.
According
to the Lee, detention without trial is generally considered legal under
the laws of war. Prisoners of war can be imprisoned without charges or
trial. But if Guantanamo detainees are moved to US prisons,
"[T]hey'll likely be able to invoke greater legal protections than they've got now, according to a January analysis [5]
by Congressional Research Service lawyers. Possibly, some will even be
able to seek political asylum under immigration laws. Long-term
preventive detention would therefore require a new law and possibly
amendments to others."
While the President insisted that his anti-terror would uphold Constitutional values and the rule of law, Human Rights Watch and the American Civil Liberties Union issued statements accusing him of betraying that commitment with by advocating for preventive detention.
Among the President's critics, MSNBC's Rachel Maddow was particularly direct:
In advancing his detention policy Jeralyn Merritt said Obama was "just like [former Pres. George W.] Bush." Ann Althouse also noted the similarity between Obama and his predecessor, but with more amusement than chagrin:
"Obama
the moderate pragmatist. He's oh-so-different from Bush and also -
let's not be rigid and ideological - really also exactly the same."
Digby
at Hullabaloo is not only unhappy with the President's policy position,
she's displeased that it's garnered the approval of columnists such
as the Washington Post's Ruth Marcus:
Here's some good news for President Obama. The villagers have
decided that he's getting terrorist policy juuuuust right. Dick Cheney
and his pals on the right believe in torture and no due process at all
while the "far left" believes that torture is immoral and everyone is
entitled to basic human rights, so the proper course is to split the
difference and only rip up half the constitution instead of the whole
thing.
Actually, here's a bit of what Marcus had to say:
Obama
inherited a minefield of difficult legal issues entwined in the war on
terrorism, and he has picked his way carefully, intelligently and --
for the most part -- correctly through them.
Asp at Xpostfactoid argues
that Obama's commitment to seek Congrssional approval is one important
distinction between Pres. Obama's positions and that of ex-president
Bush:
Here Obama embraces a controversial Bush practice - preventive
detention - but abjures the sole authority to executive that practice.
He is asserting an extraordinary authority yet diffusing it among the
three branches. He implicitly acknowledges the danger inherent in
granting
