The backlash against President Obama's extraordinary proposal for indefinite "preventive detention" -- already widespread in the immediate aftermath of his speech -- continues to grow. On Friday, Sen. Russ Feingold sent a letter (.pdf) to Obama which, while praising some aspects of his speech, vowed to hold hearings on his detention proposal, and in the letter, Feingold rather emphatically highlighted the radical and dangerous aspects of Obama's approach:
My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.
While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.
Feingold's last point -- that the more Obama embraces radical Bush/Cheney polices, the more entrenched they become as bipartisan consensus -- is critically important, and extends to other policies as well, from the use of state secrets to block judicial review of executive branch lawbreaking, the concealment of evidence of government crimes, the veneration of "looking-forward political harmony" over the rule of law in cases of extreme government lawbreaking, and the denial of habeas corpus rights to individuals we abduct and transport to a war zone (such as Bagram).
On Twitter on Friday, Rachel Maddow pointed to the civil liberties questionnaire from Charlie Savage which Obama answered during the Democratic primary and asked rhetorically: "This is the same guy now proposing 'prolonged detention' without trial?" The New York Times' William Glaberson wrote that Obama's detention policy "would be a departure from the way this country sees itself"; observed that "in some countries, it is called 'administrative detention,' a designation with a slightly totalitarian ring"; and quoted the Center for Constitutional Rights' Michael Ratner as pointing out that "holding detainees domestically under a new system of preventive detention would simply 'move Guantánamo to a new location and give it a new name.'" And on Meet the Press this Sunday, the same bizarre (though entirely understandable) pattern continued to assert itself whereby the hardest-core followers of George Bush can barely contain their admiration for Obama's "counter-terrorism" policies (National Review's Rich Lowry: "it's kind of a funny debate because Obama has embraced the essentials of the Bush counterterrorism program. I think that program worked, I think it's wise of him to do that and it, it reflects some admirable kind of flexibility and pragmatism").
It's a bit difficult to claim that what Obama is proposing is nothing new, nothing out of the ordinary, given that his own White House Counsel just last February told The New Yorker's Jane Mayer that it would be "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law." As acknowledged by two of the leading proponents of preventive detention -- Bush OLC lawyer Jack Goldsmith and Obama's Deputy Solicitor General Neal Katyal -- the real purpose of preventive detention (contrary to what some are arguing) is not to classify and treat all detainees as "prisoners of war" (since some of them, by Obama's own description, will get trials in real courts and others in military commissions), but rather, to give "the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates" (h/t EJ). I defy anyone to re-read that description of what this "preventive detention" system does and then claim that what is being described is a "justice system" in any meaningful sense of that term.
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On Friday, I spoke with the ACLU's Ben Wizner about these issues and the transcript is here.
UPDATE: In this morning's New York Times, the aforementioned Charlie Savage examines Obama's choice to replace David Souter on the Supreme Court in the context of executive power, noting that while Obama has rejected some of the most extreme Bush legal theories, his embrace of many of the same policies -- denial of habeas rights at Bagram, revised military commissions, preventive detention -- places Obama on what Savage called "his own collision course with the court."
As Savage notes, Souter was a very reliable vote in favor of placing some limits on Bush's executive power assertions (which were almost invariably 5-4 decisions against Bush). Thus, replacing Souter with a justice who is more receptive to broad claims of executive power could shift the balance of the court on these questions.
Savage examines the record, which reveals that one leading candidate -- Seventh Circuit Court of Appeals Judge Diane Wood -- has some very impressive past statements that demonstrate her recognition of the need to impose real limits on executive power, including what would appear to be her opposition to Obama's just-announced plan for military commissions ("'the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business,' [Wood] wrote"). By contrast, Obama's Solicitor General -- Elena Kagan -- has, as Law Professor Darren Hutchinson also documents, repeatedly endorsed broad theories of executive power of the type that would fit in nicely with Bush's OLC circa 2004.
That Obama may be motivated to seek out a Justice with much more permissive views of executive power than those to which the Bush-41-appointed Souter subscribed -- all in order to ensure that the Court approves of his "counter-terrorism" policies -- simply underscores the irony of what Obama is doing in this area.
UPDATE II: When he introduced his proposal for preventive detention during Thursday's speech, Obama said he wants to "work with Congress to develop an appropriate legal regime, that our efforts are consistent with all values and our Constitution." But as CQ reports today (h/t EJ), key members of his own party are baffled by how any such preventive detention system could ever possibly be consistent with the Constitution:
President Obama may not get a lot of help from Congress in designing the detention system he says he wants: something that can hold people who haven't committed any terrorists acts, but probably will, in a way that's consistent with the Constitution.
So far, congressional Democrats have no idea how he can do that -- which pretty much leaves him with the burden of figuring it out himself. . . .
The problem is, the congressional Democrats he'd consult on the issue don't seem to have any suggestions for Obama on how to detain potentially dangerous people without violating the Constitution.
"I don't know," said House Judiciary Chairman John Conyers Jr. of Michigan, who would be likely to be involved in any discussions between Obama and Congress. . . .
Democratic Rep. Jim McGovern of Massachusetts gave Obama "credit for taking the issue on in a straightforward way," but said only that "I'd be interested to see what he's proposing" on a constitutional system of preventive detention. "Maybe he's a smarter man than I," McGovern said, but "I can't think of a system that fits within the Constitution" . . . .
"That was one of the troubling moments in his speech, which was generally very strong on the rule of law," said Sarah Mendelson, director of the Human Rights and Security Program at the Center for Strategic and International Studies. "Either you have committed a crime, and we're prosecuting you, or you haven't. I know there's no silver bullet, believe me, but I think he's got some mixed messages."
If incarcerating people with no charges and no trial indefinitely -- while making clear that the imprisonment will likely last decades -- isn't unconstitutional, then it's hard to imagine what would be.
UPDATE III: Law Professor Jonathan Turley on Obama's preventive detention proposal: