Victory on Preventive Detention Law: In Context
When Barack Obama gave his "civil liberties" speech at the National Archives in May, he advocated a new scheme of preventive detention for detainees whom he claimed "cannot be prosecuted yet who pose a clear danger to the American people," and he unambiguously vowed to develop a new statutory regime, enacted by Congress, to vest him with the power of what he called "prolonged detention":
I know that creating such a system poses unique challenges. . . . But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees -- not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. 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. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution. As our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. . . . [I]f we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future.
Obama has now changed his mind about seeking a new law, and instead will continue to detain Terrorism suspects without charges under the current system (the one used by Bush/Cheney as well):
The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday.
Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.
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.
Regardless of what motivated this, and no matter how bad the current detention scheme is, this development is very positive, and should be considered a victory for those who spent the last four months loudly protesting Obama's proposal. Here's why:
A new preventive detention law would have permanently institutionalized that power, almost certainly applying not only to the "war on Terror" but all future conflicts. It would have endowed preventive detention with the legitimizing force of explicit statutory authority, which it currently lacks. It would have caused preventive detention to ascend to the cherished status of official bipartisan consensus -- and thus, for all practical purposes, been placed off limits from meaningful debate -- as not only the Bush administration and the GOP Congress, but also Obama and the Democratic Congress, would have formally embraced it. It would have created new and far more permissive standards for when an individual could be detained without charges and without trials. And it would have forced Constitutional challenges to begin from scratch, ensuring that current detainees would suffer years and years more imprisonment with no due process.
Beyond that, as a purely practical matter, nothing good -- and plenty of bad -- could come from having Congress write a new detention law. As bad as the Obama administration is on detention issues, the Congress is far worse. Any time the words "Terrorism" or "Al Qaeda" are uttered, they leap to the most extreme and authoritarian measures. Congress is intended to be a check on presidential powers, but each time Terrorism is the issue, the ironic opposite occurs: when the Obama administration and Congress are at odds, it is Congress demanding greater powers of executive detention (as happened when Congress blocked Obama from transferring Guantanamo detainees to the U.S.). Any process that lets Lindsey Graham, Joe Lieberman and Dianne Feinstein anywhere near presidential detention powers is one that is to be avoided at all costs. Whatever else is true, anyone who believes in the Far Left doctrines known as the Constitution, due process and what Thomas Jefferson called "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution" (i.e., jury trials) should consider it a very good thing that the Congress is not going to write a new law authorizing presidential preventive detentions. However bad things are now, that would have made everything much worse.
All that said, in a practical sense, this is still an extremely incremental -- one might even say cosmetic -- development. After all, the Obama administration is continuing to assert the power to detain people without charges or trial based on the Bush/Cheney theory (accepted by several courts) that they already have implied statutory authority (under the 2001 Authorization to Use Military Force) to do so and therefore don't need a new law. It's true that the Obama administration, to its credit, is no longer relying on the theory that the President has "inherent authority" to detain Terrorism suspects without charges, but that makes no practical difference since they claim the same exact power based on the AUMF. And, according to the New York Times, Obama's decision not to seek a new detention law "applies only to those already held at Guantánamo . . . it remain[s] an open question whether the administration would seek legislation or establish a new system for indefinite detention of suspected terrorists captured in the future."
So all one can really say about all of this is that while no improvements have been made, something that would have been extremely bad has been averted, at least for now. And while the administration continues to assert the power of indefinite detention even without a new law, at least detainees now have the right of habeas corpus review as established by the 2008 Boumediene Supreme Court decision, and thus far, 30 out of 38 detainees have won their habeas hearings and have had courts ordered them released (although 20 of the "winners" continue to remain imprisoned because we can't place them anywhere). Whatever else might be true, in our political culture, especially when it comes to Terrorism and civil liberties, blocking a new and terrible development -- even as it keeps very bad things largely in place -- is an important victory.
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This leads to a more general point: when it comes to uprooting ("changing") the Bush/Cheney approach to Terrorism and civil liberties -- the issue which generated as much opposition to the last presidency as anything else -- the Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do. They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers. With great fanfare, they announced the closing of CIA black sites -- at a time when none was operating. They trumpeted the President's order that no interrogation tactics outside of the Army Field Manual could be used -- at a time when approval for such tactics had been withdrawn. They repudiated the most extreme elements of the Bush/Addington/Yoo "inherent power" theories -- while maintaining alternative justifications to enable the same exact policies to proceed exactly as is. They flamboyantly touted the closing of Guantanamo -- while aggressively defending the right to abduct people from around the world and then imprison them with no due process at Bagram. Their "changes" exist solely in theory -- which isn't to say that they are all irrelevant, but it is to say that they change nothing in practice: i.e., in reality.
That's why I called yesterday's announced changes to the state secrets policy a "farce" (here's a Washington Times article today reporting on reactions, including mine). Yes, the changes they announced sound better in theory than what existed previously. It's nice that the DOJ claims it will voluntarily impose a higher burden on itself before asserting the privilege, will require the approval of the Attorney General, will avoid asserting the privilege only to avoid embarrassment over government wrongdoing, etc. But none of that would have altered the Obama administration's controversial, Bush-replicating assertions of the privilege. Not only the Attorney General, but the President himself, explicitly endorsed the specific assertions of the privilege that triggered the controversies in the first place: to block, in advance, lawsuits brought by victims of Bush's torture, rendition and illegal eavesdropping programs. This "new policy" would plainly allow the continuation of that conduct because the decision-makers now -- the DOJ -- are the same ones who asserted the privilege in the first place. So how, in practice, would this change anything?
Most important of all, the central abuse is rooted in the ability of the Executive Branch to assert the secrecy privilege without any binding limitations imposed by Congress and enforced by courts. We're not supposed to have a system of government where we rely on the good faith of the Executive Branch to monitor itself. Without a law in place that limits the President's ability to have entire lawsuits dismissed on secrecy grounds, abuse is inevitable. The last administration proved that, and so has the current one. The institutional bias of the Justice Department is that it sees the world from the perspective of the Executive Branch and wants to win cases on its behalf, and the state secrets privilege is far too potent and tempting a weapon to leave in their hands in unfettered form, hoping upon hope that they will exercise it responsibly. The abuses were coming from the DOJ in the first place; how can the solution possibly be to trust that the DOJ will police itself responsibly in the future? Why shouldn't these abuses be curbed by an act of Congress and enforceable by courts? Yet again, the policy the Obama administration announced -- clearly designed to undermine the perceived need for a law to limit the privilege -- has pretty words in it, but it enacts no real changes.
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In an excellent new article in The New York Review of Books this week, Gary Wills examines the underlying systemic and cultural reasons why, in the areas of civil liberties and national security, "the Obama administration quickly came to resemble Bush's." Wills makes the point I've been emphasizing for some time: as long as we remain a nation in a permanent state of war, devoted to imperial ends, maintaining our National Security State ensures that the core assaults on civil liberties will never end; at best, we can tinker with them on the margins with the types of pretty words that the Obama administration adores, but it will persist and grow on its own accord:
But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the "war on terror"-all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941-2009) have made the abnormal normal, and constitutional diminishment the settled order. . . .
Some were dismayed to see how quickly the Obama people grabbed at the powers, the secrecy, the unaccountability that had led Bush into such opprobrium. . . . .
Now a new president quickly becomes aware of the vast empire that is largely invisible to the citizenry. The United States maintains an estimated one thousand military bases in other countries. . . .
That is just one of the hundreds of holdings in the empire created by the National Security State. A president is greatly pressured to keep all the empire's secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast, shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the bomb, a modern president cannot not use the huge powers at his disposal. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.
Wills' whole essay is highly worth reading. None of it excuses "how quickly the Obama people grabbed at the powers, the secrecy, the unaccountability that had led Bush into such opprobrium." But it does explain it and put it into context. Even if Obama were committed to undoing these policies -- just assume hypothetically that this were true -- the nature of America's imperial and militarized political culture would make that, as Wills says, "a hard, perhaps impossible, task." The President is powerful, but there are many other factions that wield great power as well -- the permanent Washington political class, both public and private -- and they are firmly entrenched against any type of "change" in these areas as one can imagine, as it's from those policies that their power and purpose (and profits) are derived
That's why I keep quoting the 1790 warning of James Madison about what happens -- inevitably -- to a country when it chooses to be a permanent war-fighting state devoted to maintaining imperial power:
Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied : and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both. No nation could preserve its freedom in the midst of continual warfare.
Shouldn't we think about what that means? All of these subsidiary, discrete battles are shaped by this larger truth. We're a country that has been continuously at war for decades, insists it is currently at war now, and vows that it will wage war for years if not decades to come (Obama: we'll be waging this war "a year from now, five years from now, and -- in all probability -- ten years from now"). Exactly as Madison said (and as Wills this week emphasized), as long as we're choosing to be that kind of a nation, then the crux of the Bush/Cheney approach will remain in place. We can sand-paper away some of the harshest edges ("we're no longer going to drown people in order to extract confessions"); prettify some of what we're doing ("we're going to detain people with no charges based on implied statutory power rather than theories of inherent power"); and avoid making things worse ("we won't seek a new preventive detention law because we don't need one since we already can do that"). But no matter who we elect, the pervasive secrecy, essentially authoritarian character of the Executive, and rapid erosion of core liberties will continue as long as we remain committed to what Wills calls "the empire created by the National Security State."
UPDATE: For more on the entirely cosmetic nature of the so-called "new state secrets" policy, see this excellent article from The Washington Independent's Daphne Eviatar.
UPDATE II: Just as Eviatar did with the state secrets "change," The American Prospect's Adam Serwer documents that civil libertarians and other liberal Obama supports are deeply dissatisfied with Obama's detention decision, given the Bush/Cheney detention scheme that remains instead of a new preventive detention law.
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