Obama appointee previews the imminent preventive detention debate

An advocate of Obama's preventive detention scheme demands sober debate while spewing stereotypes and distortions.

Published September 10, 2009 11:11AM (EDT)

(updated below - Update II)

By all accounts, the White House is going to unveil its proposal for indefinite detention within the next four to eight weeks, and it has begun dispatching proponents of that scheme to lay the rhetorical groundwork.  In The Washington Post today, one of the proposal's architects -- Law Professor Robert Chesney, a member of Obama's Detention Policy Task Force -- showcased the trite and manipulative tactics that will be used by advocates of indefinite detention to win support for their radical program [anyone doubting that detention without trials is radical should recall that Obama's own White House counsel Greg Craig told Jane Mayer back in February that it's "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law"; New York Times reporter William Glaberson wrote that "Obama's detention policy "would be a departure from the way this country sees itself"; Sen. Russ Feingold warned that it "violates basic American values," "is likely unconstitutional," and "is a hallmark of abusive systems that we have historically criticized around the world"; The New York Times' Bob Herbert said that "Americans should recoil as one against the idea of preventive detention"; and the Obama policy's most vigorous Congressional proponents are Tom Coburn and Lindsey Graham]. 

According to Chesney, though, the real extremists are those "on the left" who oppose preventive detention; those who believe that radical liberties such as criminal charges, trials and due process are necessary before the state can put someone in a cage for life; those who agree with Thomas Jefferson that trial by jury is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."  Chesney insists that such people (these "leftists") are (as always) the mirror images of the extremists on the Right, who "carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk."  These two equally partisan, radical, extremist sides (i.e., those who believe in due process and trials and those who oppose them) are -- sadly -- "shrink[ing] the political space within which reasonable, sustainable policies [i.e., Chesney's preventive detention scheme] might be crafted with bipartisan support."

This is how political debates are typically carried out in Washington by the Serious Centrists and Responsible Adults.  Chesney writes an entire Op-Ed defending the soon-to-be-unveiled preventive detention policy without describing a single aspect of it.  To Serious people, the substance of the policy is irrelevant.  What matters is that anyone who opposes it is a radical, partisan, shrill extremist.  Conversely, as long as the Obama administration stays somewhere in the middle of the two sides -- between Tom Coburn and Russ Feingold -- then it proves they are being sensible, moderate and responsible, regardless of how extreme and dangerous their proposal actually is, and regardless of how close to Coburn and as far from Feingold as they end up.  That's the manipulative formula that always passes for "debate" in Washington and it's what is meant by "centrism" and "bipartisanship."

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Chesney's Op-Ed -- a template for how the Obama White House intends to advocate for its detention program -- is nothing more than a cascade of banal Beltway adjectives designed to demonize those who oppose their preventive detention scheme ("polarized" -- "misleading" -- "rancor" -- "vivid and provocative" -- "easy to convey in sound bites, attack ads, blog entries" -- "self-reinforcing particularly for those who confine their news consumption ... to partisan sources" -- "binary choice between black-and-white alternatives, with apocalyptic stakes" -- "distrust and polarization").  Wow --  those who think it's wrong to imprison people without trials, who harbor "distrust in the executive branch," and who believe in due process sure are disruptive, unpleasant, irresponsible, shrill and hysterical:  exactly like those on the Right who want to deny trials to people.  By contrast, Chesney showers himself and his fellow advocates of preventive detention with the standard Beltway Seriousness praise ("a realistic and sophisticated understanding of what each of the tools can offer" -- "sustainable" -- "effective" -- "nuanced, practical solutions" -- "shun the spirit of polarization and politicization that has come to plague detention policy from both ends of the political spectrum").

But after hailing himself as the Guardian of Serious, Substantive Debate, Chesney goes on to disgustingly accuse certain, unnamed "politicians and "advocacy groups" -- those who "criticiz[e] Republicans for alleged abuses of executive power and civil liberties" and "promiscuously invoke the post-Sept. 11 version of the Imperial Presidency narrative" -- of not really believing what they say.  Instead, preventive detention opponents are only raising civil liberties concerns "to rouse the base, generate donations and maintain prominence in the media." 

So according to the President's Task Force Member, the ACLU (filled with lawyers who sacrifice greatly to litigate on behalf of the most despised and oppressed), and Russ Feingold (who, representing a Midwestern purple state, defends Constitutional liberties with no prospect of political gain), don't genuinely believe in those causes.  They don't really think there's anything wrong with imprisoning people with no trials.  They didn't really think the Constitution was threatened by Bush radicalism, and now by Obama's embrace of many of those same policies.  They're just pretending they do -- exaggerating the threats those policies pose -- because they're hungry for money and attention.  That is the sober, moderate, reflective, substantive, deeply Serious National Security discussion which only Chesney and his fellow adult travelers in the middle are capable of conducting, while those on the extremes rely on "provocative rancor."

Just to get a flavor for how completely dishonest his arguments are, consider this passage, which -- like the whole Op-Ed -- attempts to equate both sides as irrational extremists:

Individual issues in the debate over detention policy are often framed in stark and incompatible terms. Take, for example, the Guantanamo detainees, who are portrayed in some quarters as innocent bystanders to the last man and in other quarters as the "worst of the worst."  While both extremes are misleading, their influence is pervasive.

I've been writing and speaking about these issues for several years now and I have never -- ever -- heard anyone claim that Guantanamo detainees are "innocent bystanders to the last man."  What a blatantly dishonest strawman, a cowardly way to engage a debate by radically distorting and demoninzing opponents (opponents of our preventive detention scheme love and believe in the core Goodness and innocence of Khalid Shiekh Mohammed and all Guantanamo detainees "to the last man" -- they're obviously pro-Terrorist).  Is that how this debate is supposed to be conducted?  This morning, I emailed Chesney and asked him to identify a single person who has ever said this, and he replied:  "Would love to have a back-and-forth, but am at hospital [for a personal event]... suffice to say that I've certainly heard that view expressed at various conferences and the like."  I wasn't really looking for a "back-and-forth":  I just sought the identity of those who ever claimed that Guantanamo detainees are "innocent bystanders to the last man."  It's unclear why, if that view is as "pervasive" as he claims, he can't provide some names (but I nonetheless wished him luck with his personal event and invited him to have a vigorous "back-and-forth" once he's ready.)

There is no question that many of the detainees who have been imprisoned at Guantanamo -- and still are imprisoned there -- are innocent.  After the U.S. Supreme Court ruled in 2008 that they have the constitutional right to a habeas corpus hearing, federal judges in 28 out of 33 cases have found insufficient evidence to justify their detention.  It takes a morally warped person not to be outraged by the imprisonment of people for years -- held incommunicado and indefinitely, under brutal conditions, as Terrorists, thousands of miles away from their homes -- who have done absolutely nothing wrong.  And it requires an equal level of moral depravity to question the sincerity of those who object to such travesties, to attribute to opponents of preventive detention ignoble motives -- as though only a desire for greater fundraising could motivate anger over the imprisonment of innocent people without charges. That slimy accusation says far more about Chesney than those he's accusing.

Nonetheless:  the guilt or innocence of detainees is completely irrelevant to the case against preventive detention.  Those who oppose preventive detention don't do so due to a belief that detainees are innocent.  They do so due to a belief in due process, the Constitution and the rule of law.  If detainees are really guilty, then they should be charged with a crime, convicted in a real court proceeding and then imprisoned -- just as England did with those accused of plotting to blow up airplanes over the Atlantic Ocean.  That this proposition -- as basic and defining a precept as exists in American political culture -- is now demonized as radical, partisan and extremist by an Obama appointee speaks volumes about how far towards the authoritarian pole our spectrum (and its "center") has shifted.  Chesney knows full well that the belief in due process ("charge or release") -- and not the view that Guantanamo detainees are "innocent bystanders to the last man" -- is what motivates opposition to preventive detention.  But he's only interested in inflaming and distorting the debate even as he self-lovingly parades around as desiring nothing more than a sober and substantive dialogue (unbelievably, his demonizing strawmen clichés appear under this Post headline:  "Rancor and Stereotypes May Mar Detention Debate").

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On Tuesday night, I was a guest for a full hour on WCEV, a Muslim radio station in Chicago, to talk about civil liberties, torture, and the Obama administration.  I discussed with the host -- Abdul Malik Mujahid, an American Muslim -- the numerous Muslims who were rounded up and imprisoned on U.S. soil by the Ashcroft DOJ in the wake of 9/11.  He was particularly concerned that, as a result of America's ongoing wars and detention schemes in Afghanistan and Iraq, anti-American sentiment was continuing to rise and there would be another terrorist attack on U.S. soil, and he asked me what I thought would happen in terms of civil liberties in the event of another attack.  

That's what makes things like a prevention detention statute so dangerous.  Indefinitely imprisoning Guantanamo detainees without trial -- or abducting people from around the world and shipping them to Bagram (or third-party countries) with no legal rights -- is intrinsically heinous.  But the real danger lies in institutionalizing such schemes using the force of law -- vesting the President with the ongoing, future statutory power to imprison people based on the pernicious theory that they are likely to commit a crime in the future and therefore must be "preventively detained" with no charges and no trial.  It's not merely likely, but inevitable, that such powers will be severely abused -- especially if there is another attack.  As the Ninth Circuit recently wrote in ruling that John Ashcroft can be held personally liable for the wrongful, post-9/11 imprisonment of  American Muslims:  such policies "are repugnant to the Constitution and a painful reminder of some of the most ignominious chapters in our national history."

That's presumably why Greg Craig said that it's "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law."  If Professor Chesney and his pro-preventive-detention comrades in the Obama administration are truly interested in the substantive, Serious discussion they claim they want, they ought to focus on those dangers.  Our own history -- and basic human nature -- leave no doubt that those dangers are far more grave and serious than whatever costs there are to according all people we want to imprison -- including accused Terrorists -- real due process.

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As a reminder, I use Twitter for commentary that isn't substantial enough to justify a column here but which may be worth reading for readers; it can be followed here.


UPDATE:  I just recalled that this is the same Robert Chesney on whom Fred Hiatt relied to argue, in a 2007 Washington Post Editorial, that there was nothing bothersome or unusual about the Bush administration's use of the "state secrets" privilege.  At the time, I documented the numerous pro-Bush positions Chesney had taken in defending the administration's more radical executive power theories.  That is who Obama selected to help design his preventive detention policy, and it shows.


UPDATE II:  Britain has a much milder version of "preventive detention" than what Obama is seeking, where Terrorist suspects are confined to their homes and subject to extreme limitations on their movements based on "control orders" -- all grounded in the unproven accusation that they are associated with Terrorists.  In comments, HumeGhost excerpts a couple of short passages from a recent PBS examination of that British program which highlight the evils even of such a limited governmental weapon.

By Glenn Greenwald

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