On June 28th 2009 I posted on a breaking story, that Administration Officials announced in a press conference:
“The White House is considering whether to issue an executive order to indefinitely imprison a small number of Guantanamo Bay detainees, concerned that Congress might otherwise stymie its plans to quickly close the naval prison in Cuba.” The report continues:
“The administration is also considering asking Congress to pass new laws that would allow the indefinite detentions, the official said.”
The post title was “Isn’t it time to purge the taint of Guantanamo – even it it comes at a price?” and probably bears a quick re-reading.
The story starts with president Obama’s National Security speech. The speech that became notorious for the fact that as the President addressed the nation, the former Vice President addressed the nation with criticism in what The Moderate Voice labeled “dueling speeches.”
President Obama waxed eloquent on the many errors of the Bush Administration repeatedly referring to the necessity of abiding by the rule of law and cautioning against departure from constitutional principles in favor of expediency. Referring to the Bush administration Obama stated:
“Our government made a series of hasty decisions, … poorly planned … haphazard approach … too often we set those principles aside as luxuries that we could no longer afford.”
“… an ad hoc legal approach to fighting terrorism that was neither effective not sustainable.”
But to the surprise of human rights experts and citizens he went on to announce his own “ad hoc” legal approach. He dusted off and shined up the phrase “Indefinite Detention” as “prolonged detention.” In closing Guantanamo he said, after those who are to be tried are referred to court and after those for whom no rational basis for continued detention can be justified are released …
“(there will be a) number of 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.
Those people apparently are the ones for whom a new legal regime will be required. So in the absence of any ability to prosecute them for crimes committed (in the past) we would then seek to create a legal framework which can keep them in prison based upon our expectation that they will commit future crimes.
Rachael Maddow likened this logic to the Tom Cruise movie “Minority Report” in which Cruise played a member of the “District of Columbia Pre-crime Division” a team of police who arrested people and imprisoned them – without trial – not for what they had done but for “future crimes.” Of course in Minority Report they had “Oracles” telling them what crimes would occur and presumably in this Phillip Dick story there was a strong degree of certainty that the Oracle’s predictions were accurate.
In describing this process of “prolonged detention” President Obama continued with an explanation of what can only be called an “ad hoc” legal regime of his own.
“My administration has begun to reshape the standards that apply, to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall into this category.
We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated, and justified. Our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States should keep an individual to keep them from carrying out an Act of War, we will do so in a system that involves judicial and congressional oversight.
The ACLU didn’t miss a trick and their Executive Director, Anthony D. Romero, immediately issued the following statement:
“We welcome President Obama’s stated commitment to the Constitution, the rule of law and the unequivocal rejection of torture. But unlike the president, we believe that continuing with the failed military commissions and creating a new system of indefinite detention without charge is inconsistent with the values that he expressed so eloquently at the National Archives today.”
In Great Britain, a country without a bill of rights, Tony Blair tried to create a “prolonged detention” system limited to just 90 days. Even in the wake of the London Tube bombings the British people would have nothing to do with it. Only after much strategy and lobbying did Parliament finally approve detention without charge or trial and then, only for a maximum of 28 days. That 28 days mind you is still the longest period of time a person can be held without charge or trial in any western democracy.
With regard to Guantanamo and the indefinite detention issue the veteran South African anti-apartheid campaigner Archbishop Desmond Tutu joined the chorus of criticism of Guantánamo Bay.
“I never imagined I would live to see the day when the United States and its satellites would use precisely the same arguments that the apartheid government used for detention without trial. It is disgraceful,” he told the BBC’s Today program.
In my posting “Isn’t it time to purge the taint of Guantanamo – even it it comes at a price?” I made some suggestions. That we immediately purge the taint of our actions at Guantanamo by putting to trial all the detainees we have sufficient evidence to prosecute, and that if we cannot put some to trial for terrorism because we tortured them rendering much of the evidence inadmissible – we should accept the responsibility for our illegal actions and let them go and suffer whatever consequences ensue. Releasing and then keeping them under close surveillance would not cost us, as a nation, as much as keeping them detained costs us in terms of international “soft power.”
While President Obama has condemned the illegal actions of the Bush Administration we still have had no inquiry, no war crimes investigation and no real transparency on the issue of interrogations, rendition, or detention. President Obama has made it clear that we will no longer “torture” there is still no mission consequence if they do. By that I mean that unless torture precludes trial and the preclusion of trial requires release – there is no real consequence to the mission of keeping America Safe to encourage compliance.
In domestic criminal law the exclusionary rule is the best tool we have to curb the actions of our law enforcement officers. Even conservative academics defend it’s application. If police step over the line and search without a warrant, coerce a confession, intimidate witnesses or other such unlawful activities while investigating and prosecuting crime we exclude the evidence that results from the illegal action. Nothing does more to keep our police honest and above reproach than the thought of having to set a guilty party free because they “violated a suspect’s rights.”
President Obama eloquently stated we should never again “set those principles aside as luxuries that we could no longer afford.”
Nonetheless, we don’t have to be speculative about this issue, we can look at how the abrogation of rights has already impacted human beings.
Take a Walk in Lakhdar Boumediene’s Shoes – for an incredibly disturbing but illustrative account of what can happen. Boumedeine’s story is an account of what happened to Red Crescent (sister organization to the Red Cross) worker who the prosecutor at the Bosnian Supreme Court admited there is no evidence against him and the court ordered his release. What America did to him in the following seven years is precisely the level of injustice that can occur when we consider the rule of law as a luxury we can no longer afford or by concocting new legal regimes, bootstrapped from a pre-determined and unlawful goal, that being prolonged/indefinite detention.
Other sources – Obama Is Said to Consider Preventive Detention Plan (NY Times), Obama Endorses Indefinite Detention Without Trial for Some (Washington Post), CCR: Obama Embraces Indefinite Detention, Not Meaningfully Different From Bush (TPM), Obama in Bush Clothing (Washington Post), Terror suspects face indefinite detention after Guantánamo (Financial Times), Facts and myths about Obama’s preventive detention proposal (Glenn Greenwald of Salon), Is Obama creating “an American Gulag?” (Joan Walsh of Salon). Obama slides further down Bush’s hill on Indefinite Dentntion (Chrisy58’s Blog)
Full text of Obama’s speech on National Security (21 May 2009, NY Times)