In the wake of Obama’s speech, there are vast numbers of new converts who now support indefinite “preventive detention.” It thus seems constructive to have a dispassionate and fact-based discussion on the implications of “preventive detention” and Obama’s related detention proposals. Here are some points worth noting:
(1) What does “preventive detention” allow?
It’s important to be clear about what “preventive detention” authorizes. It does not merely allow the US Government to imprison people alleged to have committed terrorist acts yet who are unable to be convicted in a civilian court proceeding. That class is merely a subset, perhaps a small subset, of who the Government can detain. Far more significant, “preventive detention” allows indefinite imprisonment not based on proven crimes or past violations of law, but of those deemed generally “dangerous” by the Government for various reasons (such as, as Obama put it, they “expressed their allegiance to Osama bin Laden” or “otherwise made it clear that they want to kill Americans”). That’s what “preventive” means: imprisoning people because the Government claims they are likely to engage in violent acts in the future because they are alleged to be “combatants.”
Once known, the details of the proposal could — and likely will — make this even more extreme by extending the “preventive detention” power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a “combatant.” After all, once you accept the rationale on which this proposal is based — namely, that the US 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 without trials, all allegedly “dangerous” combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the US.
(2) Are defenders of Obama’s proposals being consistent?
During the Bush years, it was common for Democrats to try to convince conservatives to oppose Bush’s executive power expansions by asking them: “Do you really want these powers to be exercised by some liberal President?”
Following that logic, for any Democrat/progressive/liberal/Obama supporter who wants to defend Obama’s proposal of “preventive detention,” you should first ask yourself three simple questions:
• What would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely with no charges?;
• When Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it?; and
• Even if I am comfortable with Obama having this new power because I trust him not to abuse it, am I comfortable with future Presidents — including Republicans — having the power of indefinite “preventive detention”?
(3) Questions for defenders of Obama’s proposal:
There are many claims being made by defenders of Obama’s proposals which seem quite contradictory and/or without any apparent basis, and I’ve been searching for a defender of those proposals to address these questions:
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? In the Bush era, the Government has repeatedly been able to convict alleged Al Qaeda and Taliban members in civilian courts, including several (Ali al-Marri, Jose Padilla, John Walker Lindh) who were tortured and others (Zacharais Moussaoui, Padilla) where evidence against them was obtained by extreme coercion. What makes you believe that genuine terrorists can’t be convicted in our justice system?
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?
Above all: for those justifying Obama’s use of military commissions by arguing that some terrorists can’t be convicted in civilian courts because the evidence against them is “tainted” because it was obtained by Bush’s torture, Obama himself claimed just yesterday that his military commissions also won’t allow such evidence (“We will no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods”). How does our civilian court’s refusal to consider evidence obtained by torture demonstrate the need for Obama’s military commissions if, as Obama himself claims, Obama’s military commissions also won’t consider evidence obtained by torture?
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? If you don’t trust evidence obtained by torture, why do you trust it to justify holding someone forever, with no trial, as “dangerous”?
(4) Do other countries have indefinite preventive detention?
Obama yesterday suggested that other countries have turned to “preventive detention” and that his proposal therefore isn’t radical (“other countries have grappled with this question; now, so must we.”) Is that true?
In June of last year, there was a tumultuous political debate in Britain that sheds ample light on this question. In the era of IRA bombings, the British Parliament passed a law allowing their Government to preventively detain terrorist suspects for 14 days — and then either have to charge them or release them. In 2006, Prime Minister Tony Blair — citing the London subway attacks and the need to “intervene early before a terrorist cell has the opportunity to achieve its goals” — wanted to increase the preventive detention period to 90 days, but MPs from his own party and across the political spectrum overwhelmingly opposed this, but did increase it to 28 days.
In June of last year, Prime Minister Gordon Brown sought an expansion of this preventive detention authority to 42 days — a mere two weeks more. Reacting to the modest increase, a major political rebellion erupted, with large numbers of Brown’s own Labour Party joining with Tories to vehemently oppose it as a major threat to liberty. Ultimately, Brown’s 42-day scheme barely passed the House of Commons. As former Prime Minister John Major put it in opposing the expansion to 42 days:
“It is hard to justify: pre-charge detention in Canada is 24 hours; South Africa, Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey 7½ days.”
By rather stark and extreme con-trast, Obama is seeking preventive detention powers that are indefinite — meaning without any end, potentially permanent. There’s no time limit on the “preventive detention.” Compare that power to the proposal that caused such a political storm in Britain and what these other governments are empowered to do. The suggestion that indefinite preventive detention without charges is some sort of common scheme is clearly false.
(5) Is this comparable to traditional POW detentions?
When Bush supporters used to justify Bush/Cheney detention policies by arguing that it’s normal for “Prisoners of War” to be held without trials, that argument was deeply misleading. And it’s no less misleading when made now by Obama supporters. That comparison is patently inappropriate for two reasons: (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this “war” will not be over for decades, if ever, which means — unlike for traditional POWs, who are released once the war is over — these prisoners are going to be held not for a few years, but for decades, if not life.
Traditional “POWs” are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting. The potential for error and abuse in deciding who was a “combatant” was thus minimal. By contrast, many of the people we accuse of being “combatants” aren’t anywhere near a “battlefield,” aren’t part of any army, aren’t wearing any uniforms, etc. Instead, many of them are picked up from their homes, at work, off the streets. In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.
Anyone who doubts that should just look at how many Guantanamo detainees were accused of being “the worst of the worst,” yet ended up being released because they did absolutely nothing wrong. Can anyone point to any traditional POW situation where so many people were falsely accused and where the risk of false accusations was so high? For obvious reasons, this is not and has never been a traditional POW detention scheme.
During the Bush era, that was a standard argument among Democrats. This is what Anne-Marie Slaughter — now Obama’s Director of Policy Planning for the State Department — said about Bush’s “POW” comparison on Fox News on November 21, 2001:
“Military commissions have been around since the Revolutionary War. But they’ve always been used to try spies that we find behind enemy lines. It’s normally a situation, you’re on the battlefield, you find an enemy spy behind your lines. You can’t ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.”
That’s not this situation. It’s not even remotely like it.
As for duration, the US Government has repeatedly said that this “war” is so different from standard wars because it will last for decades, if not generations. Obama himself said that “unlike the Civil War or World War II, we can’t count on a surrender ceremony to bring this journey to an end” and that we’ll still be fighting this “war” “a year from now, five years from now, and — in all probability — 10 years from now.” No rational person can compare POW detentions of a finite and usually short (2-5 years) duration to decades or life in a cage. That’s why Law Professor Diane Marie Amann, in The New York Times, said this:
“[Obama] signaled a plan by which [Guantanamo detainees] — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.”
There are many things that can be said about indefinitely imprisoning people with no charges who were not captured on any battlefield, but the claim that this is some sort of standard or well-established practice in American history is patently false.
(6) Is it “due process” when the Government can guarantee it always wins?
If you really think about the argument Obama made — when he described the five categories of detainees and the procedures to which each will be subjected — it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: We’ll give real trials only to those detainees we know in advance we will convict. For those we don’t think we can convict in a real court, we’ll get convictions in the military commissions I’m creating. For those we can’t convict even in my military commissions, we’ll just imprison them anyway with no charges.
Giving trials to people only when you know for sure, in advance, that you’ll get convictions is not due process. Those are called “show trials.” In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).
Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest).
The Government picks and chooses which process you get in order to ensure that it always wins.
A more warped “system of justice” is hard to imagine.
(7) Can we “be safe” by locking up all the Terrorists with no charges?
Obama stressed yesterday that the “preventive detention” system should be created only through an act of Congress with “a process of periodic review, so that any prolong-ed detention is carefully justified.” That’s certainly better than what Bush did: namely, preventively detain people with no oversight and no Congressional authorization — in violation of the law. But as we learned with the Military Commissions Act of 2006 and the Protect America Act of 2007, the mere fact that Congress approves of a radical policy may mean that it is no longer lawless but it doesn’t make it justified. As Professor Amann put it: “[N]o amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty.” Dan Froomkin said that no matter how many procedures are created, that’s “a dangerously extreme policy proposal.”
Regarding Obama’s “process” justification — and regarding Obama’s primary argument that we need to preventively detain allegedly dangerous people in order to keep us safe — Digby said it best:
“We are still in a ‘war’ against a method of violence, which means there is no possible end and which means that the government can capture and imprison anyone they determine to be ‘the enemy’ forever. The only thing that will change is where the prisoners are held and few little procedural tweaks to make it less capricious.
“There seems to be some misunderstanding about Guantanamo, like it is nothing more than a symbol, which can be dealt with by simply closing the prison. That’s just not true. Guantanamo is a symbol, true, but it’s a symbol of a lawless, unconstitutional detention and interrogation system. Changing the venue doesn’t solve the problem.
“There are literally tens of thou-sands of potential terrorists all over the world who could theoretically harm America. The mere fact that we are doing this makes us less safe because the complete lack of faith we show in our Constitution and our justice systems. 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.”
Even so, Obama’s resolve to close Guantanamo is commendable. But the fact that a Democratic President who ran on a platform of restoring America’s standing and returning to our core principles is now advocating the creation of a new system of indefinite preventive detention — something that will become a standard view of Democratic politicians and hordes of Obama supporters — is by far the most consequential event yet in the formation of Obama’s civil liberties policies.
Glenn Greenwald was a constitutional law and civil rights litigator in New York. and the author of two New York Times Bestselling books: “How Would a Patriot Act?” and “A Tragic Legacy.”