Obama to Indefinitely Imprison Detainees without Charges

One
of the most intense controversies of the Bush years was the
administration's indefinite imprisoning of "War on Terror" detainees
without charges of any kind. So absolute was the consensus among
progressives and Democrats against this policy that a well-worn slogan
was invented to object: a "legal black hole." Liberal editorial pages routinely cited the refusal to charge the detainees
-- not the interrogation practices there -- in order to brand the camp
a "dungeon," a "gulag," a "tropical purgatory," and a "black-hole
embarrassment." As late as 2007, Democratic Senators like Pat Leahy,
on the floor of the Senate, cited the due-process-free imprisonments to
rail against Guantanamo as "a national disgrace, an international
embarrassment to us and to our ideals, and a festering threat to our
security," as well as "a legal black hole that dishonors our
principles." Leahy echoed the Democratic consensus when he said:

The
Administration consistently insists that these detainees pose a threat
to the safety of Americans. Vice President Cheney said that the other
day. If that is true, there must be credible evidence to
support it. If there is such evidence, then they should prosecute these
people.

Leahy also insisted
that the Constitution assigns the power to regulate detentions to
Congress, not the President, and thus cited Bush's refusal to seek
Congressional authorization for these detentions as a prime example of
Bush's abuse of executive power and shredding of the Constitution.

But
all year along, Barack Obama -- even as he called for the closing of
Guantanamo -- has been strongly implying that he will retain George
Bush's due-process-free system by continuing to imprison detainees
without charges of any kind. In his May "civil liberties" speech
cynically delivered at the National Archives in front of the U.S.
Constitution, Obama announced that he would seek from Congress a law
authorizing and governing the President's power to imprison detainees
indefinitely and without charges. But in September, the administration
announced he changed his mind: rather
than seek a law authorizing these detentions, he would instead simply
claim that Congress already "implicitly" authorized these powers when
it enacted the 2001 AUMF against Al Qaeda -- thereby, as The New York Times put it, "adopting one of the arguments advanced by the Bush administration in years of debates about detention policies."

Today, The New York Times' Charlie Savage reports:

The
Obama administration has decided to continue to imprison without trials
nearly 50 detainees at the Guantanamo Bay military prison in
Cuba because a high-level task force has concluded that they are too
difficult to prosecute but too dangerous to release, an administration
official said on Thursday.

The Washington Post says
that these decisions "represent the first time that the administration
has clarified how many detainees it considers too dangerous to release
but unprosecutable because officials fear trials could compromise
intelligence-gathering and because detainees could challenge evidence
obtained through coercion." Once that rationale is accepted, it
necessarily applies not only to past detainees but future ones as
well: the administration is claiming the power to imprison whomever it
wants without charges whenever it believes that -- even in the face of
the horrendously broad "material support for terrorism" laws the
Congress has enacted -- it cannot prove in any tribunal that the
individual has actually done anything wrong. They are simply decreed
by presidential fiat to be "too dangerous to release." Perhaps worst
of all, it converts what was once a leading prong in the radical
Bush/Cheney assault on the Constitution -- the Presidential power to
indefinitely imprison people without charges -- into complete
bipartisan consensus, permanently removed from the realm of
establishment controversy.

There are roughly 200
prisoners left at the camp, which means roughly 25% will be held
without any charges at all. Using the administration's perverse
multi-tiered justice system, the rest will either be tried in a real
court, sent to a military commission or released. What this means,
among other things, is that the President's long-touted policy of
closing Guantanamo is a total sham: the essence of that "legal black
hole" -- indefinite detention without charges -- will remain fully in
place, perhaps ludicrously and dangerously shifted to a different locale (onto U.S. soil) but otherwise fully in tact. The U.S. Supreme Court ruled in 2008
that the Military Commissions Act unconstitutionally denied the right
of habeas corpus to Guantanamo detainees -- a principle the Obama
administration has vigorously resisted when it comes to Bagram
detainees -- but mere habeas corpus review does not come close to a
real trial, which the Bill of Rights guarantees to all "persons" (not only "Americans") before the State can keep them locked in a cage.

Numerous
Democrats have spent the year justifying Obama's desire for indefinite
detention with dubious excuses that would have been unthinkable to hear
from them during the Bush years. I addressed all of those excuses in
full back in May, here. As but one example, the claim most commonly cited to justify Obama's actions -- these detainees can't be convicted because the evidence against them is "tainted" by torture
-- is: (a) completely unproven; (b) completely immoral (it's one of
the longest-standing principles of Western justice that
tortured-obtained evidence can't be used to justify imprisonment); and
(c) completely contradictory (Democrats spent years claiming, and still
do, that torture doesn't work and produces unreliable evidence; if
that's true, who could possibly justify indefinitely imprisoning
someone based on torture-obtained -- i.e., inherently unreliable -- evidence?). Whatever else is true, both Obama's policy and the rationale -- we
must imprison Terrorists without charges because there's no evidence to
convict them but they're somehow still deemed too dangerous to release -- is exactly what the Bush/Cheney faction endlessly repeated to justify its "legal black hole."

But
no matter. If there's one thing we've seen repeatedly all year long,
it's that many Democrats simply do not believe in the axiom best expressed by The New York Times' Bob Herbert when he said that "Americans should recoil as one against the idea of preventive detention." As Herbert wrote: "policies that were wrong under George W. Bush are no less wrong because Barack Obama is in the White House."
That precept should be too self-evident to require expression and yet
is widely rejected. Hence, exactly that which very recently was
condemned as "a dungeon, a gulag, a tropical purgatory, and a
black-hole embarrassment" is now magically transformed into a beacon of
sober pragmatism from a man -- a Constitutional Scholar -- solemnly
devoted to restoring America's Standing and Values.

* * * * *

Yesterday,
prior to this decision being announced, I conducted a 20-minute
interview with ACLU Exeuctive Director Anthony Romero regarding that
group's newly released report
on Obama's civil liberites record after the first year in office,
pointedly entitled: "America Unrestored." I'll post that discussion
later today. Additionally, I will have an analysis of the Supreme
Court's obviously momentous decision in Citizens United -- invaliding restrictions on corporate and union election spending -- posted later.