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.
