Obama's speech was generally well recieved yesterday, except for that bit about how there are some people who we are going to hold in prison without trial, theoretically forever. This is otherwise known as "preventative detention."
Here's what Obama said:
Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
As Rachel Maddow pointed out on her show last night, in a speech dedicated to the defense of the rule of law, it is rather striking to see Barack Obama embrace a completely and totally unconstitutional policy like "preventative detention."
Look, while I may be inclined to believe that Obama is genuinely try to struggle with the difficulties of formuating a policy to deal with the continual, eight-year screw up that was the Bush Administration, a policy like the one he is advocating here cannot stand. Even in the (dubious) case that the Obama administration acts with total good will and infallible judgment on this, it sets a precedent that can be used (and abused) by other administrations down the line.
And, let's be clear what we're talking about here: We're talking about keeping in detention people whom we cannot try because "the evidence was tainted." Let's unpack that shall we? Tainted how? Obama does not say, but the clear implication is that we cannot try these folks because they provided evidence under torture.
So, having tortured them, rendering them incapable of being tried, we're going to solve the problem by holding them indefinitely without trial! There is no way this can be constitutionally justified.
And, you know what, I suspect the Obama administration knows this. They're punting, hoping that some other solution will appear to them, before the Supreme Court definitively declares that these policies are against the constitution. What will happen then I can't imagine, but unless we can find a way to try these folks, we may have no choice but to let them go. That's how the rule of law works.
I'll give Hilzoy the last word on this:
The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don't have enough evidence, that's a problem, but it's also a problem with detaining them in the first place.
People seem to be operating under the assumption that there is something we can do that will bring us perfect safety. There is no such thing. We can try our best, and do all the things the previous administration failed to do -- secure Russian loose nukes, harden our critical infrastructure, not invade irrelevant countries, etc. -- but we will never be completely safe. Not even if we give up the freedom that is our most precious inheritance as Americans.
Freedom is not always easy, and it is not always safe. Neither is doing the right thing. Nonetheless, we ought to be willing to try. I wish I saw the slightest reason to believe that we are.