Obama Waffles on Indefinite Detention
4818723 President Barack Obama is said to be troubled by executive branch plans to indefinitely detain without trial the "worst of the worst" terror suspects currently held at Guantanamo Bay, Cuba. "It gives me huge pause," the president told The Associated Press last week. "And that's why we're going to proceed very carefully on this front. And it may turn out that after looking at all the dimensions of this that I don't feel comfortable with the proposals that surface on how to deal with this issue."
A plan that would endorse and extend one of the worst Bush-era terror law policies ought to give "huge pause" to the current occupants of the White House. Of all the ways in which Team Obama has so far let down civil libertarians - endorsing a broad "state secrets" doctrine, protecting Bush officials from prosecution over torture memos, fighting to keep basic rights from detainees at Bagram Air Force base, I could go on — surely the most odious is this dabbling in the dark art of endless confinement for men not proven guilty in any court of law.
As the administration tries to empty and close Gitmo, federal officials continue to say that there are some prisoners — like perhaps Ramzi Binalshibh, Khalid Sheik Mohammed and Abu Zubaydah — who cannot be released into the world but who also may not be triable because of the way evidence against them was obtained (for example, through torture). Bush lawyers made these claims, too, even as they tried to prosecute terrorists under military commission rules. No one who heard candidate Obama's noble terror law speeches would have predicted he would follow the same course.
But the Bush White House failed only in the execution of its tribunal system. The ginned-up rules at first were patently unconstitutional and are now, several Supreme Court rulings later, still only marginally acceptable (and legally dubious). However, the concept of tribunals for dangerous men — part criminal, part warrior, part terrorist — is a sound one, rooted in the military and legal history of America. So perhaps the most disturbing part of the Obama administration's "indefinite detention plan" is that it concedes defeat before a real effort has been made, by current leaders, to come up with a workable, legitimate way to process unrepentant men like Mohammed.
It's not like there aren't options. Benjamin Wittes, a columnist and fellow at the Brookings Institution, has covered the legal war on terror closely since the terror attacks of September 2001. He's written extensively, and academically, on the subject and now he and a colleague are out with a new paradigm: detention with rolling "sunshine" periods where federal court judges can regularly and continuously review the executive branch's decision to indefinitely detain terror prisoners without trial. This, Wittes argues, is that vital "check" on presidential power that avoids the sort of habeas corpus problems that have been around as long as their have been kings.
Even as the president plays Hamlet with the rights of detainees, the White House, to its credit, clearly gets that it's not going to be able to go it alone when it comes to a policy that is as un-American as gulags. That's why the president last week made sure to say on the topic: "It is very important that the American people and Congress, in conjunction with my administration, come up with a structure that is not only legitimate in the eyes of our constitutional traditions, but also in the eyes of the international community." Wittes wants the judiciary to give the executive branch cover. The White House is looking to Congress for the same.
The truth is that it's going to take the cooperation and consensus from all three branches to make work a policy that fairly, but toughly, handles these rare detainee cases. Congress is going to have to endorse a new tribunal and detention plan and the federal courts, including the U.S. Supreme Court, ultimately is going to have to support its legitimacy and constitutionality. Our courts have been dealing with classified evidence for hundreds of years, there already exist Foreign Intelligence Surveillance Act courts stocked with judges who know how to handle sensitive cases, and there is plenty of room in the Constitution to both protect national security and fairly incarcerate our enemies.
I think Wittes' idea is doomed to run into the wall at the Supreme Court, which surely is going to require more upfront judicial oversight into the rationale behind the detentions. But I think men like Mohammed and Binalbshibh can be tried (and convicted) in special courts. I think a framework for such courts already are in place. And I think there are enough bright lawyers in government to make it happen. President Obama should, indeed, pause those self-defeating plans to give up and simply throw detainees into indefinite lockdown. And the White House should use the extra time to come up with a real solution to a difficult problem.
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.
© 2009 CBS Interactive Inc.. All Rights Reserved. A plan that would endorse and extend one of the worst Bush-era terror law policies ought to give "huge pause" to the current occupants of the White House. Of all the ways in which Team Obama has so far let down civil libertarians - endorsing a broad "state secrets" doctrine, protecting Bush officials from prosecution over torture memos, fighting to keep basic rights from detainees at Bagram Air Force base, I could go on — surely the most odious is this dabbling in the dark art of endless confinement for men not proven guilty in any court of law.
As the administration tries to empty and close Gitmo, federal officials continue to say that there are some prisoners — like perhaps Ramzi Binalshibh, Khalid Sheik Mohammed and Abu Zubaydah — who cannot be released into the world but who also may not be triable because of the way evidence against them was obtained (for example, through torture). Bush lawyers made these claims, too, even as they tried to prosecute terrorists under military commission rules. No one who heard candidate Obama's noble terror law speeches would have predicted he would follow the same course.
But the Bush White House failed only in the execution of its tribunal system. The ginned-up rules at first were patently unconstitutional and are now, several Supreme Court rulings later, still only marginally acceptable (and legally dubious). However, the concept of tribunals for dangerous men — part criminal, part warrior, part terrorist — is a sound one, rooted in the military and legal history of America. So perhaps the most disturbing part of the Obama administration's "indefinite detention plan" is that it concedes defeat before a real effort has been made, by current leaders, to come up with a workable, legitimate way to process unrepentant men like Mohammed.
It's not like there aren't options. Benjamin Wittes, a columnist and fellow at the Brookings Institution, has covered the legal war on terror closely since the terror attacks of September 2001. He's written extensively, and academically, on the subject and now he and a colleague are out with a new paradigm: detention with rolling "sunshine" periods where federal court judges can regularly and continuously review the executive branch's decision to indefinitely detain terror prisoners without trial. This, Wittes argues, is that vital "check" on presidential power that avoids the sort of habeas corpus problems that have been around as long as their have been kings.
Even as the president plays Hamlet with the rights of detainees, the White House, to its credit, clearly gets that it's not going to be able to go it alone when it comes to a policy that is as un-American as gulags. That's why the president last week made sure to say on the topic: "It is very important that the American people and Congress, in conjunction with my administration, come up with a structure that is not only legitimate in the eyes of our constitutional traditions, but also in the eyes of the international community." Wittes wants the judiciary to give the executive branch cover. The White House is looking to Congress for the same.
The truth is that it's going to take the cooperation and consensus from all three branches to make work a policy that fairly, but toughly, handles these rare detainee cases. Congress is going to have to endorse a new tribunal and detention plan and the federal courts, including the U.S. Supreme Court, ultimately is going to have to support its legitimacy and constitutionality. Our courts have been dealing with classified evidence for hundreds of years, there already exist Foreign Intelligence Surveillance Act courts stocked with judges who know how to handle sensitive cases, and there is plenty of room in the Constitution to both protect national security and fairly incarcerate our enemies.
I think Wittes' idea is doomed to run into the wall at the Supreme Court, which surely is going to require more upfront judicial oversight into the rationale behind the detentions. But I think men like Mohammed and Binalbshibh can be tried (and convicted) in special courts. I think a framework for such courts already are in place. And I think there are enough bright lawyers in government to make it happen. President Obama should, indeed, pause those self-defeating plans to give up and simply throw detainees into indefinite lockdown. And the White House should use the extra time to come up with a real solution to a difficult problem.
(CBS)
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Like the worst of the worst German and Japanese war criminals after WW2.
My support of Barack Obama will be weakened severely by any endorsement of an Orwellian "indefinite detention."
World War II had a beginning, a middle and an end. POWs were not held prisoner for their entire lifetimes, and the true monsters were given fair public trials.
The "War on Terror" is only a war in a figurative sense, like the "War on Drugs," because of its indefinite time limit.
No one would want drug users held in indefinite detention.
Give them public trials.
How can a US court try these guys??
Once again, President Obama PROVES that Bush wasn't that far off the mark.......
not to come back another day.
"Indefinite detention",,, sans absolute truth of
guilt???,,,
Dont bother,,our government denies truths and
absolute truths they deny absolutely.
I ask you, what purpose would possibly scotching a fillibuster-proof majority in Congress have? Chances that Congress will retain a fillibuster proof Democratic majority after 2011 are not guarenteed so the sensible thing is to deal with all the important stuff that requires that solid Democratic majority - like for example, bureaucratic appointments - and get to the prisoners later.
by johndevinejr July 6, 2009 11:10 AM PDT
--------------
So why hasn't Obama closed Gitmo and released all the detainees yet?
Didn't Obama promise to close Gitmo and stop the endless detention of suspected terrorists?
Why hasn't he kept his promise?
So you think that if all campaign pledges are not completed withing the first 120 day that the promise has not been fulfilled?
In my view no promise has been broken. Complex problems caused by incompetent republicans will take time to fix. Only an idiot would expect these things to occur that quickly. Especially with the huge disaster caused by republicans.
Bush failed on every level in every area. He was the worst President in the last 100 years, perhaps in the history of the country. That kind of incompetence will take years to recover from.
Right now we are on the brink of total collapse, in part because of financing the Iraq war on credit.
Can you name ONE THING THAT BUSH DID RIGHT?
He can't keep his promises.
Obama is the worst president in 100 years.