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
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.
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.
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.
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 Guantanamo to a new location and give it a new name.'" And on Meet the Pressthis 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").
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.
* * * * *
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
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.
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
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
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.
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" . . . .
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."
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: