That is what Barack Obama is now planning, according to an article by Dafna Linzer and Peter Finn in the Washington Post. The article, which I blogged about last night, at Comments from Left Field, is difficult to make sense of because it’s really more about the Obama administration using two reporters to take the public temperature on a desired policy than it is a news story about an actual government program.
Glenn Greenwald has a lot to say about the disservice this kind of muddy journalism does to public understanding (emphasis is Glenn’s):
Anonymous trial balloon articles like this one are difficult to comment on because it’s obviously designed to announce that a certain policy is being considered before it’s actually written, and so none of the key details is known. Would Obama’s new detention powers apply only to current “War on Terror” prisoners at places like Guantanamo and Bagram, or would they also apply to future, not-yet-abducted detainees as well? Would these powers apply to detainees picked up anywhere in the world, far away from “war zones”? Would there be any judicial review or other meaningful oversight provisions so that — even in theory — this was something other than the unilateral, unchecked presidential power to detain indefinitely without charges? None of these important details is known (though the article notes that, under one White House proposal, “ongoing detention would be subject to annual presidential review“; the Emperor, sitting alone, will decree once a year whether they must remain in a cage).
This specific article is even worse than the usual one of its type, since it’s particularly uncritical in passing along administration claims without any skepticism (I addressed each of the “justifications” for Obama’s preventive detention proposal — Obama has to do this because of what Bush did; we can’t get convictions because of Bush’s torture; it’s common in War to do things like this, etc. etc. — here). Worse, the article does not provide any information about the Obama officials whose mission the reporters are dutifully carrying out, so there’s no way to assess their motives.
Those journalistic practices produce egregious sentences like this: “‘Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order’, the official said.” I’d love to know which so-called “civil liberties groups” are pushing the White House for an Executive Order establishing the power of indefinite detention. It’s certainly not the ACLU or Center for Constitutional Rights, both of which issued statements vehemently condemning the proposal (ACLU’s Anthony Romero: “If President Obama issues an executive order authorizing indefinite detention, he’ll be repeating the same mistakes of George Bush”).
Pres. Obama seems to think that his system of preventive indefinite detention will somehow not violate constitutional guarantees of due process if he and Congress wrap it in the “rule of law.” But due process is due process. You can’t rewrite the law to allow the government to keep people behind bars essentially forever for what you think they might do when you can’t actually prove in court that they did anything dangerous or illegal, and then call that the rule of law. That’s not the rule of law. That’s the use of law to defy the rule of law. Or, as Darren Hutchinson puts it, “Kinder, gentler indefinite detention is still unlawful.” Hutchinson continues:
Recently, Obama himself confirmed that his administration would detain some suspected terrorists without prosecuting them in federal courts or in a military tribunal. Obama described the individuals as persons who “cannot be prosecuted for past crimes. . .but who nonetheless pose a threat to the security of the United States.” Obama, however, stated that he would collaborate with Congress to create a system that utilized judicial and Congressional oversight, required periodic review, and that did not depend upon the will of one person:
We must have clear, defensible and lawful standards for those who fall in 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. . . .
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.
Although Obama’s statement suggests a strong commitment to the rule of law, his argument that the United States can simply detain people who have not committed a criminal act is an anathema to the notion of due process. And simply saying that the detention will prevent them from “carrying out an act of war” does not prove that they ever engaged in or will engage in warfare against the United States. Certainly, many law enforcement officers would like the authority to detain individuals they believe might one day possibly commit some crime. Due process, however, does not allow this to occur.
Digby picks up Glenn’s argument about the Obama administration doing sneakily what the previous one did openly:
… I often wondered whether we were doing a bit of a disservice to Bush and Cheney for constantly criticizing them for implementing the unitary executive theory so openly. For such a secretive regime, they were surprisingly honest about what they were doing. They said they believed the constitution meant for the president to be all powerful and above the other two branches and they acted on that premise. And the debate over that, once engaged, was pretty robust and very public.
This was in contrast to previous presidencies which pretended, as Obama is doing now, that they believed in the balance of power between the the branches even as they subverted it as often as they deemed necessary. It’s not a partisan thing. Presidents of both parties have done this. Bush and Cheney were actually quite unique in their rare “principled” approach to the American security state dictatorship. …
The irony, of course, is that the man who ran on transparency is actually turning out to be less transparent than the president he excoriated on the campaign trail for his secrecy. Bush and Cheney were pretty upfront about the fact that they believed they had the constitutional right to act in any way they saw fit, regardless of the accepted understanding of the constitution or congressional and judicial prerogatives. Bush declared “I’m the decider” and he meant it. This administration obviously believes it has that right as well — it just pretends otherwise.
Steve Hynd is thoroughly disenchanted:
Obama has already [forfeited] my (always sceptical) support – over his claims to secrecy, his abysmal Af/Pak non-plan, his denials of habeas rights and his continued torturing of the facts about Iran’s nuclear program. My original fears have been proven justified, he’s America’s Tony Blair. Yes, he’s better than John McCain or Hillary Clinton would have been in the Oval Office; that’s a pretty low bar though, and not one that should garner progressives’ uncritical support for a president who simply isn’t very good at all.
If you want to see how a human rights and due process travesty under Bush can magically morph into something entirely understandable, reasonable, logical, and defensible under Obama, see the comments at Justin Gardner’s post here.
PAST CONTRIBUTOR.