(updated below - Update II - Update III)
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.
* * * * *
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:
To listen to this discussion, go here and click PLAY on the recorder:
Glenn Greenwald: My guest today is Ben Wizner, who is with the ACLU's National Security Project, and he was also the lead lawyer in the recent victory where the Ninth Circuit rejected the arguments by the Bush administration and the Obama administration that state secrets prevents the court from hearing a claim brought by various victims of Bush's torture and rendition policy. Ben, thanks for joining me again, and let me begin by asking you:
Obama gave a speech yesterday that obviously covers a lot of issues that you work on personally and that the ACLU is very heavily involved. What in general is your reaction to his speech and the specific points he made?
Ben Wizner: Well, thanks Glenn for having me back. Look, there's no doubt that President Obama inherited a great big mess. He took over from a regime that shredded the Constitution. He took over from a regime that made a catastrophic decision, in my view, that we had to scrap our existing legal rules and create a entire detention and trial system outside of any known law.
My real concern with Obama's speech yesterday, is that although he said a very important things about the Constitution and the rule of law, the policies that he advocated made the Bush administration's decision to go outside the law, a kind of self-fulfilling prophecy. It may to serve to enshrine into law the very departures from the law that the Bush administration led us on, and that we all criticized so much. And I'll elaborate on that. But that's really my initial reaction to it; that what President Obama was talking about yesterday is making permanent some of the worst features of the Guantanamo regime. He may be shutting down the prison on that camp, but what's worse is he may be importing some of those legal principles into our own legal system, where they'll do great harm for a long time.
GG: There's a very interesting point that I don't think gets enough attention, and it's the following: Jack Goldsmith, who was the Bush administration lawyer in the Office of Legal Counsel who, in 2003 and 2004, withdrew some of the early torture memos and assertions of presidential authority that were written by John Yoo and Jay Bybee as being inadequate. He wrote a book called The Terror Presidency, and his central argument was that the Bush administration's primary mistake was not in adopting these counter-terrorism policies, but that they actually ended up weakening these policies and weakening their own power because they failed to include the Congress and they failed to institutionalize these policies in the law.
And Goldsmith recently wrote an article last week in The New Republic arguing that he actually likes Obama's approach better, not because Obama is pursuing different policies - he's not, he's pursuing the same, said Goldsmith - but that he's doing it in a better way because he's actually going to give these Bush policies a firmer footing by, for one thing, establishing them and institutionalizing them with acts of Congress, and secondly by not only having Republican support for them but Democratic support for them as well, and making them now bipartisan. In other words, Obama's doing a better job of solidifying Bush policies than Bush and Cheney did.
Do you agree with that approach; is that the kind of concern you're describing?
BW: Well, I think there's a lot of truth to that. The way I would put it, slightly differently, is that obviously I would not put it in terms of praise, but a concern. The Bush administration drove us off one cliff in bringing us into this "war on terror," the Obama administration may be driving us off another cliff in trying to get us out of it. I'm not at all convinced that these are the policies that an Obama administration would have been advocating had they not been left with this cancer that is Guantanamo. But, let's not be fooled about the long-term consequences will be.
In order to remove this blot on our legal system and on our international reputation, President Obama is starting with the proposition that anyone who his intelligence agencies consider to be dangerous must be detained. Now, President Bush had an easy way of doing that, he just detained those people and ignored the law. President Obama in wanting to respect the law, now has to enshrine legal rules that will allow him to do what he's already decided to do which is to detain people. So the system that he described yesterday was not only meaningful sense a justice system, it was a detention. When you start with the conclusion, which is that we'll decide if someone is dangerous, and we'll detain that person, and then work backwards to a set of permanent legal rules that will allow us to reach that outcome, you can see why I might be concerned that we're creating a permanent power vesting in the president holding anybody that he wants to hold.
And I think another way of looking at this, is: would people be comfortable if president Bush had that power and from Congress, with the power to decide who is dangerous and then decide whether or not to prosecute that person in a criminal trial. And if people would not be comfortable with president Bush having that power, they shouldn't be comfortable with President Obama having it, because he's not going to be president forever.
GG: Let me ask you about a couple of the arguments that are made by defenders of these policies, including Obama and Obama officials. Let's begin with the one that I think is the most common, which is, there is a class of people -- let's leave to the side for the moment how large that class is, how many members are in that class -- but there's a class of people who are currently detained who we cannot convict in a civilian court, and maybe not even in a military commission, and yet they are clearly terrorists. They are far too dangerous to possibly release into the world because if we do that, we are certain that they will engage in violent acts against the United States and try and kill Americans in the future, and therefor preventative detention is the only plausible way for Obama to be able to keep these people where they belong, which is locked up. What is your view of that claim?
BW: Well, actually, I wrote an article, co-write an article for Salon about this issue back in December with my colleague Jamal Jaafer, so maybe you can include another link to it; I know you have in the past. Of course my first response is the one that you asked me to set aside, which is that I think we're describing an empty set here, that I'm not convinced at all that there is such a category of people who could not be prosecuted under our vastly over-broad material support statutes that allow conviction for people who attend or even try to attend terrorist training camps.
GG: Let me stop you there. I want to ask you to elaborate on that point. When you talk about this overly-broad system of justice we have that makes it extremely easy for the government to obtain convictions in civilian courts for anything relating to terrorism, describe specifically what that means.
BW: Basically, we have federal anti-terrorism statutes that criminalize provision of so-called 'material support' to terrorists. So someone can be convicted and serve long prison sentences without ever having been involved with or charged with any kind of terrorist attack. You just have to have provided some kind of support through an organization that the United States has deemed a terrorist organization.
Let's give some well-known examples. The Lackawanna Six from up in Buffalo - these were American kids who went off to Afghanistan and trained in a training camp and then came back. They are serving lengthy prison sentences for having gone to that training camp. They're not charge with having committed any other crime. Jose Padilla, the so-called 'Dirty Bomber,' who languished in military detention, when he was transferred to civilian court, was prosecuted essentially for having filled out an application to go to an al Qaeda training camp, is serving a 17-year sentence. So, there is no charge that has ever been brought so far in the military commissions at Guantanamo, or that's being contemplated, that couldn't be easily be prosecuted under our civilian material support statute.
So what are we really talking about when we say that there are people who are too dangerous to release but too difficult to prosecute? I think Obama tipped his hand a little bit yesterday, when he ad libbed a remark that these are cases that involve tainted evidence. 'Tainted' is an euphemism, we know, for torture. And this is how torture impacts an entire legal system. We disregard our laws in the way that we obtain evidence, and now we change our laws, or so Obama proposes, in order to avoid the consequences of that.
But I think you put this well in your post earlier, Glenn. If this tainted evidence is not reliable enough to be the basis for a criminal conviction, why is it reliable enough to us to detain somebody without charge or trial? We don't exclude evidence which is tainted because we occupy a moral high ground, but because we know from experience that evidence is beaten or frozen or drowned out of people, is unreliable. And so therefore I really do question this category. How do we know that these people are so terribly dangerous if we don't have the kind of evidence that we would feel confident bringing before a court?
GG: Now, let ask you about this. Let's say there is somebody who has not engaged previously in a terrorist act. They've never blown anybody up or shot at any Americans or done any of the things that we would quickly describe as terrorism, but they have, for example, proclaimed their allegiance to Osama bin Laden, to use an example that President Obama cited yesterday in his speech to justify preventative detention. And they vow that the minute they're told to, they intend to engage in terrorism against Americans, and kill as many Americans as they can. Now, there's an argument to make that we couldn't convict people like that, because they haven't actually done anything yet that a court would recognize as a crime, and yet the argument from Obama officials is that the president needs to be able to not wait until those people engage in a terrorist act, but lock them up preventively to ensure that they never do. What's your view of that claim?
BW: Well, I'm actually not as hopeful as you are that our law would prevent a conviction under those circumstances. The truth is our conspiracy laws might allow for a prosecution of somebody who knowingly joined a conspiracy, al Qaeda, aimed at inflicting harm on the United States. So, it may be that each category that President Obama outlined, is described as a category of people who can't be prosecuted, actually does, again, describe a prosecutable offense.
But I think the broader point is this. We can't go around the entire world rounding up and locking up everybody who we think might, at some point, be dangerous. When we talk about people who want to do harm to the United States, or have expressed a desire to kill Americans, we're not talking about 200 people in a prison in Cuba, we might be talking about tens or hundreds of thousands or millions of people around the world, and we simply can't use our justice system and our laws to sweep up all of those people and to hold them forever. And I really think our discourse here has gone astray. I really think here, although President Obama said terrific things about not being governed by fear, this is an example of how we are being governed by fear. The idea that a small handful of people who have expressed a desire to harm to America represent an existential threat to our country requiring that we change the fabric of our laws and deviate from our Constitution is one that we really ought not to be taking seriously.
GG: Just to underscore this point you've been making about how easy it is to obtain convictions in our court system against people who haven't really done anything we would consider terrorist acts at all - there have actually been convictions of people who, for example, do nothing more than include in their cable package that they broadcast and sell, channels from organizations deemed to be terrorist groups by the United States such as Hizbollah. There was a prosecution and a conviction for someone who did nothing but that, and so I think that it's true that it can't be overstated how easy it is to convict people who are in any way, according to the government, connected to a terrorist group.
BW: Let me make one more point about Obama's categories, Glenn, because President Obama has been praised in a lot of quarters for having used a more subtle and nuanced approach, laid out different kinds of categories for different kinds of detainees. Even The New York Times appeared to like it this morning.
It would be one thing if we were setting a series of principles differentiating different kinds of detainees on the basis of their conduct, combatant status, or otherwise. But if you listen to the president's speech yesterday, that's not at all what was happening. In fact, those different categories -- article III federal courts, military commissions, preventive detentions without trial -- are going to be delineated not on the basis of kind of conduct that we charge defendants with participating in, but based on the quality of evidence that prosecutors think they have. And so this is worst kind of forum-shopping.
We'll use our legitimate federal courts if prosecutors have determined, after looking at the evidence, that they can get a conviction from a jury. We'll use military commissions if we think we have a case that's almost good enough, but we need rules that are a little bit jury-rigged to favor the prosecution. And we'll go into a preventive detention scheme when we think we simply don't have any kind of case that can go before any kind of court. And again, those distinctions are not being made on the basis of conduct, status, where someone was picked up, what he's alleged to have done; but on the basis of whether prosecutors think that they can get a conviction in our system. And that's why I say that it's a detention system and not a justice system, because the outcome is fore-ordained, and the forum is chosen based on where that outcome can be achieved.
GG: Yeah, they pick what system, what process to give you based on them being certain that they can win, and the process itself is almost just a show to justify the pre-ordained outcome, which is the detention itself.
BW: I think that's what the president said yesterday, was he repeated over and over again, let me make clear, we will not release anyone whose release in our view will endanger national security.
GG: Right. Exactly. What he's essentially saying is that we will only give the process that we are convinced in advance will result in a conviction.
Let me ask you this question, which is: under this scheme, let's say that there is somebody who the president or the intelligence community is convinced is a dangerous terrorist, and we believe nonetheless that we can actually get a conviction against them in a federal court, because the evidence is quote-unquote "untainted" and it's ample and we believe we are likely to win. Let's say that this accused terrorist is indicted in a federal court, but as it turns out, the federal court jury acquits the accused terrorist, finds that they're actually not guilty of anything, and yet the government continues to believe that they're dangerous.
Would a system of preventive detention, and I guess the details remain to be seen, but by this rationale of Obama's, that we'll never release anyone they think is dangerous, wouldn't a system of preventive detention allow the government under this theory to continue to detain that person anyway, even though they were acquitted in, say, a trial or even a military commission?
BW: That is a fascinating question. We plainly don't know the answer to that because no details of this preventive detention scheme were laid out and President Obama made clear that he's going to be going to Congress to ask for this authority. But that really is an excellent. I have to say, not as a legal matter, but as a practical and political matter, it's very hard for me to imagine this administration continuing to hold somebody who's been acquitted following a trial, but then again, even that we're asking the question suggests how far we've strayed from a true justice.
And if we're going to say that we shouldn't release people who might be dangerous, why do we confine that rule to people who have the label terrorist? People are on trial for gruesome murders every day around this country, and the same argument would permit us to say, "we can't endanger our community, we have to ensure that this person is held, and so we're going to find the forum where we know we can lock this person up." We don't do that, and I don't think anybody is really advocating for that in that context. The fact that people are advocating for that - and it seems to be a centrist position - for terrorism suggests that we view terrorism as some kind of mythical threat that is unconnected to the rest of the world.
GG: You're right. I think once you accept this reasoning that the government has to preventively detain anyone who's dangerous and means to do harm, how can you then not advocate having the government go and pick up suspected criminals off the street who, for whatever reason, can't be convicted in a real court of law.
BW: Let me just say, that's really puts to lie the notion that it's the job of our Commander-in-Chief to keep up safe first and foremost, and that's his only job. No, I mean of course the president swears an oath to protect and uphold and defend the Congress of the United States; not to protect any country, but to protect this country and the way it is. And again, if you go down that slippery path that security is the only value that trumps all others, and it doesn't make any rational or logical sense to confine it to terrorism.
GG: It does not. Now, last question, which is this. Another argument that is typically made to defend policies of these sorts, that used to be made by Bush supporters but will now be made, and is now being made by Obama supporters, is that all this is, is a recognition that the United States is at war. There are groups of people who are waging war on the United States, and the people who we intend to imprison under this scheme are nothing more than combatants, people waging war on the United States, and as long as we recognize them as prisoners of war and give them the rights under the Geneva Conventions as prisoners of war, then holding them indefinitely without trial is really not anything new, because prisoners of war typically are not given trials and typically are held until the end of hostilities. What is your reaction to that line of reasoning?
BW: What's new about this situation that we find ourselves in, is that the war has been described by proponents of a war on terror framework that takes place everywhere, and forever. The battlefield extends from O'Hare Airport to Tora Bora, and we'll have no way of knowing whether we've vanquished the noun called terror, or even this loose confederation called al Qaeda. So when you're trying to import traditional laws or detention into the context, we find we have not temporal or geographic restraints.
We might not have known when the war against Japan would end, but we knew how. We knew that it would end with a surrender and a treaty. I think that the argument can fairly be made, that people who are picked up fighting in Taliban or al Qaeda militias in Afghanistan or Pakistan against US troops, can be held pursuant to law of war authority. That's not necessarily my position, but I think that that is a defensible position.
But if we're talking about people picked up throughout the world in safe houses, far from any battlefield, arrested by civilian police, not in a cave, not with a grenade in their hands, then calling that wartime detention is basically a way of eviscerating our criminal justice system and allowing for long-term, indefinite detention of anybody who we designate as an enemy. And I think that without a limiting principle, it's a very, very dangerous power to give to any president, even a president who many Americans trust.
GG: Absolutely. As you say, the details of the proposal remain to be seen - it's typically the case that once the Congress gets a hold of things like this, they make it far worse by eliminating safeguards rather than adding them.
BW: One touchstone we should have throughout this debate is, would you trust president Bush with this authority?
GG: Yeah, or future Republican presidents. I think that's absolutely the key question. But ultimately, regardless of the details, the policy that Obama outlined yesterday, regardless of how the details get filled in, is itself an extremely dangerous policy, no matter what procedures you add on top of it, and it's not just dangerous, it so anathema to everything that our conception of justice and what our justice system is supposed to be, and that's really the point worth emphasizing. It's obviously better to have more safeguards and more procedures to prevent abuse than fewer, but institutionalizing this system into the law, no matter how it's done, is inherently dangerous and wrong, and I think that's the key premise with which we need to begin discussion.
Well, Ben, thanks so much for joining me, and I absolutely hope to have you on more as the debate unfolds and it hits the Congress and some of these details get filled in more concretely.
BW: Thanks so much, Glenn.
[Transcript courtesy of Thames Valley Transcribe]