Last Wednesday, Obama administration officials told the Washington Post, as Peter Finn described it, that the administration “has decided not to seek legislation to establish a new system of preventive detention to hold terrorism suspects.”
In some ways, of course, this is a relief. In May, in a major speech on national security, when President Obama first proposed working with Congress to introduce new legislation to authorize the “preventive detention” of prisoners at Guantánamo, lawyers, human rights advocates, and others — including myself — were appalled.
For this category of prisoners — described in the Post on Thursday as those “who cannot be prosecuted for past crimes but who are too dangerous to release,” in the New York Times as those who “are a continuing danger to national security but who cannot be brought to trial for various reasons, like evidence tainted by harsh interrogations,” and by Obama, in May, as those who “cannot be prosecuted yet who pose a clear danger to the American people” — President Obama knew he was on thin ice in May.
In his speech at the time, he insisted that any new system would have to involve “judicial and congressional oversight,” and stated
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.… And so, going forward, my administration will work with Congress to develop an appropriate legal regime.
In a comment intended to cast the president’s comments in May in a new light, officials explained to the Times on Wednesday that “working with Congress did not mean the president would seek legislation, only that he would consult lawmakers.”
While this may not have been entirely convincing, there is no doubting that what theTimes described as the administration’s “evolving arguments” regarding the eventual fate of the remaining 225 prisoners are, little by little, bringing Obama in line with what many of his supporters expected him to do on arrival in the White House.
In dropping plans for new legislation, for example, the administration has realized that it can continue to hold prisoners based on the Authorization for Use of Military Force, the congressional resolution passed the week after the 9/11 attacks, which authorizes the president “to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible” for the attacks.
This is by no means perfect, of course. As the Times noted, “In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies,” although it added, accurately, that the president’s advisers “are not embracing the more disputed Bush contention that the president has inherent power under the Constitution to detain terrorism suspects indefinitely regardless of Congress.” As the Justice Department explained in a statement on Wednesday evening, the administration will “rely on authority already provided by Congress” under the AUMF, and “is not currently seeking additional authorization.”
Responding to this development, Christopher Anders, senior legislative counsel at the ACLU, told the Post, “This is very welcome news and very big news,” and explained succinctly why new legislation would have been a disaster. “Going to Congress with new detention authority legislation would only have made a bad situation worse,” he said. “It likely would have triggered a chaotic debate that would have been beyond the ability of the White House to control — and would have put U.S. detention policy even further outside the rule of law.”
This is certainly true, but huge problems nevertheless remain with the government’s new position, of which the following two are perhaps the most significant. The first concerns doubts that the AUMF’s failure to distinguish between al-Qaeda and the Taliban can be sustained for much longer. In March, when the government first explained that it had dropped some of the Bush administration’s more excessive claims about the exercise of unfettered executive power, but that it would continue to hold prisoners in accordance with the AUMF, I explained that it was becoming increasingly obvious that there was, in fact, a major distinction between al-Qaeda (a terrorist group) and the Taliban (the government of Afghanistan at the time of the U.S.-led invasion of Afghanistan in October 2001), and that the continuing failure to make this distinction was ensuring that, essentially, low-level Taliban foot soldiers, who had been in Afghanistan fighting an inter-Muslim civil war before the 9/11 attacks, had suddenly become “terrorists” when the invasion of Afghanistan began.
Last month, I had cause to reiterate this complaint, when a judge ruled that a Kuwaiti prisoner, Fawzi al-Odah, could continue to be held indefinitely because “the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.”
More important, however, although the AUMF may legally provide an excuse for continuing to hold people without trial who, as Obama stated in May, might include “people 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,” there is, in fact, no justification whatsoever for holding prisoners indefinitely without trial.
The very basis of the judicial system in the United States and in every other country that dares to call itself civilized depends upon either capturing people and putting them on trial, or releasing them due to a lack of evidence. The only other option — holding people as prisoners of war, protected by the Geneva Conventions, who can be detained until the end of hostilities — is one that, in its confusion of criminals with soldiers, and its inability to deal honestly with either category of prisoner, the Bush administration did away with completely, and which, to his growing shame, President Obama seems to find himself unable to reintroduce, as was recently demonstrated by some alarming leaks from the U.S. prison at Bagram airbase in Afghanistan.
As I explained at the time of President Obama’s national security speech:
Frankly, to even entertain the prospect that a third category of justice (beyond guilt and innocence) can be conjured out of thin air without fatally undermining the principles on which the United States was founded is to enter perilous territory indeed. Fundamentally, Guantánamo is a prison that was founded on the presumption that the Bush administration’s “new paradigm” justified “preventive detention” for life, and although Obama stepped up his assurances at this point in his speech — talking about “clear, defensible and lawful standards,” “fair procedures,” and “a thorough process of periodic review” — it is simply unacceptable that “preventive detention” (which he referred to, euphemistically, as “prolonged detention”) should be considered as an option, however much he tried to legitimize it by stating, “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.”
To put it bluntly, it doesn’t matter how much you dress it up. Look at the sentence, “Hold[ing] individuals to keep them from carrying out an act of war,” replace “an act of war” with “a crime, any crime,” and you will, I hope, realize why the proposed policy is so terrifying and so thoroughly unacceptable. If a president came to power promising to “hold individuals to keep them from committing a crime, any crime,” I’d be very worried indeed.
In conclusion, then, the good news is that a new form of “preventive detention” is off the table (although officials told the Times that “it remained an open question whether the administration would seek legislation or establish a new system for indefinite detention of suspected terrorists captured in the future”) and that the estimates of those who will continue to be held indefinitely under the AUMF have been scaled back since Defense Secretary Robert Gates first floated the notion of “preventive detention” in the weeks before President Obama’s national security speech in May.
On that occasion, Gates told the Senate Appropriations Committee that the question was “still open” as to what the government should do with “the 50 to 100 — probably in that ballpark — who we cannot release and cannot try.” On Wednesday, as the Times explained, that figure had been reduced to 50. Officials explained that, although the administration “has not determined definitively how many detainees that applies to,” they “said it would probably be about 50 of the more than 200 men still held at Guantánamo.”
That, however, is still 50 men too many, and the very existence of our notions of justice depends on continued opposition to the proposal until the administration abandons it completely. If you have any doubt about what we’re dealing with, recall that we are discussing people who are apparently, in the Times’ words, “a continuing danger to national security but who cannot be brought to trial for various reasons, like evidence tainted by harsh interrogations.”
Just think about that. These men cannot be prosecuted because the evidence against them is “tainted by harsh interrogations.” Without the euphemistic veneer, what this means is that no verifiable evidence exists beyond that produced by the use of torture, which, as well as being illegal, is notoriously unreliable because it produces false confessions. I doubt very much that senior officials in the Obama administration would say, categorically, that they are defending as accurate information produced through the use of torture, but by seeking to hold men on no other basis, they are, in effect, attempting to justify the indefinite detention of prisoners through the use of torture, and I think that’s something about which we should all be deeply concerned.