Mixed Assessment On Preventive Detention

The Obama administration has announced it will use current law to justify the indefinite detention of about 50 terrorism suspects being held without charges as opposed to seeking a new law.  Putting this in perspective, Glenn Greenwald calls this an incremental, perhaps only cosmetic, improvement. He does find some positives in this:

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 process.

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.

This assessment comes a day after Greenwald called yesterday’s announced changes to the state secrets policy a “farce.”

1 Comment

  1. 1
    Eclectic Radical says:

    Hrrrrm. It’s difficult to argue with the point as Greenwald makes it.
     
    There is precedent for arrests and indefinite detention without trial of the Guantanamo variety. They were quite common over the stretch of the Civil War. Indeed, during the Civil War the president very specifically suspended habeas corpus in such arrests. Secretary of War Edwin Stanton was very much in love with the expanded police powers he was given as a result. Of course, the Civil War was a massive emergency on a level far beyond the artificial panic of the ‘Global War on Terror.’  It should also be noted that the handling of such arrests and detentions was one of the major issues on which the Democrats challenged Lincoln in the 1864 election.
     
    Lincoln’s feeling was much like Greenwald’s, in that legislation of the process might justify the process under far less extreme conditions. I certainly wouldn’t want to see ‘terrorism’ laws that justified this kind of thing on the books. This is especially dangerous as nothing has really changed. We are in precisely the same danger post-9/11 we were pre-9/11. We are simply aware of it now. A little different from the Civil War, even if the Republicans are currently talking secession.
     
     

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