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

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

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 Guantanamo Bay, Cuba, officials said Wednesday.

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.

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

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 Guantanamo . . . 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."

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.

* * * * *

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?

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?
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.

* * * * *

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:

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. . . .

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.

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

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:

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.

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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