The question of trust looms large as Obama prepares to ask for the authority for preventive detention -- that is, holding suspected terrorists as prisoners of war, indefinitely without trial. Trust is at issue because a President and his senior officials have access to evidence and information that the rest of us lack.
Glenn Greenwald has thrown down the gauntlet of unreasoning trust repeatedly to Obama's supporters who have not opposed decisions including release of the photos of prisoner abuse, reconstitution of the military tribunals, and preventive detention. Greenwald's challenge: if you opposed a policy under Bush, how can you accept it under Obama?
That challenge should be grappled with, rather than answered with a simple yes or no. Two questions seem salient. First, when Obama decides not to break fully with a Bush Administration practice, is his policy necessarily the same? Second, are there circumstances in which an appropriately vigilant citizen might accept the President's judgement in place of his or her own?
On the first question -- can Obama continue a Bush practice while substantively changing the policy, Jack Goldsmith offers an answer: Obama differs by rejecting unilateral presidential action, instead seeking the buy-in of Congress, the electorate and the courts. Here is the gist of a contrast worked out in detail in the final section of Goldsmith's memorable comparison of Bush and Obama in TNR, The Cheney Fallacy:
The Bush White House had a principled commitment to expanding presidential power that predated 9/11. This commitment led it early on to act unilaterally on military commissions, detention, and surveillance rather than seeking political and legal support from Congress, and to oppose judicial review of these and other wartime policies. The public concerns about presidential power induced by these actions were exacerbated by the administration's expansive rhetoric....
The Obama administration...seems to have embraced, probably self-consciously, the tenets of democratic leadership that Roosevelt and Lincoln used to enhance presidential trust, and thus presidential effectiveness, during their wars. Like Roosevelt and to some degree Lincoln, President Obama has chosen a bipartisan national security team to help convey that his national security actions are in the public interest and not a partisan one. Also like our two greatest war presidents, President Obama seems committed to genuine consultation with Congress. If he gets Congress fully on board for his terrorism program, he will spread responsibility for the policies and help convince the public and the courts that the threat is real and the steps to counterterrorism necessary.This determination to work within his Constitutional powers (in order to expand them!) is vey much on display in Obama's May 20 speech at the National Archives laying out his national security policy, including his intent to reconstitute military commissions and seek preventive detention:
As I said, 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. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in 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.Of course, a policy can be pursued through legal means and still be wrong. And defenders of civil liberties -- including some of the truest heroes of the past eight years, who battled the Bush Administration's assault on the Constitution long and hard and won crucial victories -- regard preventive detention as a Rubicon. Here's how Diane Marie Amann, a law professor at UC Davis put it in the Times (h/t Greenwald):
I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
He signaled a plan by which they — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.But what about the practical claim that many detainees who are too dangerous to release can't be prosecuted in ordinary trials? Jameel Jaffer and Ben Wizner, writing in Salon in December '08 (also cited by Greenwald), summarized a point-by-point rebuttal in a Human Rights Watch report written by former federal prosecutors Richard Zabel and James Benjamin:
President Obama promised that his “new legal regime” — words identical to those Bush Administration official John Yoo used in 2002 –- will provide an array of “fair procedures.” That ought to be a given, for the Constitution requires due process before liberty may be deprived. But no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty.
The report, "In Pursuit of Justice," examines more than a hundred international terrorism cases that were prosecuted in U.S. federal courts, and concludes that those courts are well-equipped to accommodate the government's legitimate national security interests without compromising the fundamental rights of criminal defendants. Federal prosecutors have an imposing array of prosecutorial weapons for targeting suspected terrorists, including statutes that criminalize assault and homicide, the use of weapons of mass destruction, and harboring or concealing terrorists.
Of the many statutes that prosecutors have employed against suspected terrorists, perhaps the most far-reaching are those that criminalize the provision of "material support" to organizations that have engaged in terrorism or have been designated as terrorist organizations. These statutes allow the government to secure convictions without having to show that the defendant actually intended to further terrorism, and indeed without having to show that any specific act of terrorism has taken place or is being planned. Thus, in recent years, defendants have been convicted of material support for attending terrorist training camps, for giving medical aid to injured fighters, and for supplying funds for the humanitarian activities of designated terrorist groups. In fact, the material support laws are so sweeping that they have been criticized for criminalizing conduct that is protected by the First Amendment. (In one pending case in New York, the government is prosecuting a man whose "material support" consisted of rebroadcasting a Hezbollah television station in Brooklyn, N.Y.) But while one can fairly criticize the material support laws for criminalizing too much conduct, it would be difficult to criticize them for criminalizing too little. Given the vast sweep of those laws, it is hard to imagine that Guantánamo holds any substantial number of men who are simultaneously impossible to prosecute and yet too dangerous to release.
The contention that the federal courts are incapable of protecting classified information -- "intelligence sources and methods," in the jargon of national security experts -- is another canard. When classified information is at issue in federal criminal prosecutions, a federal statute -- the Classified Information Procedures Act (CIPA) -- generally permits the government to substitute classified information at trial with an unclassified summary of that information.On the other side of the issue is Jack Goldsmith:
For many reasons, it is too risky for the U.S. government to deny itself the traditional military detention power altogether, and to commit itself instead to try or release every suspected terrorist.Goldsmith further argues that trying some terrorist suspects in civilian courts may damage civil liberties:
For one thing, military detention will be necessary in Iraq and Afghanistan for the forseeable future. For another, we likely cannot secure convictions of all the dangerous terrorists at Guantanamo, much less all future dangerous terrorists, who legitimately qualify for non-criminal military detention. The evidentiary and procedural standards of trials, civilian and military alike, are much higher than the analogous standards for detention. With some terrorists too menacing to set free, the standards will prove difficult to satisfy. Key evidence in a given case may come from overseas and verifying it, understanding its provenance, or establishing its chain of custody in the manners required by criminal trials may be difficult...the problem only grows when the evidence is old. And perhaps most importantly, the use of such evidence in a criminal process may compromise intelligence sources and methods, requiring the disclosure of the identities of confidential sources or the nature of intelligence-gathering techniques, such as a sophisticated electronic interception capability.
The Moussaoui and Padilla prosecutions highlight an under-appreciated cost of trials, at least in civilian courts. The Moussaoui and Padilla trials were messy affairs that stretched, and some observers believe broke, our ordinary criminal trial conceptions of conspiracy law and the rights of the accused, among other things. The Moussaoui trial, for example, watered down the important constitutional right of the defendant to confront witnesses against him in court, and the Padilla trial rested on an unprecedentedly broad conception of conspiracy. An important but under-appreciated cost of using trials in all cases is that these prosecutions will invariably bend the law in ways unfavorable to civil liberties and due process....
Obama has apparently accepted arguments very like Goldsmith's. Without elaborating why he believes they can't be tried, Obama on May 20 characterized in some detail those whom he would detain as military prisoners:
Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.This claim raises the question: why trust Obama's judgment that a substantial number of such captives are a) too dangerous to be released, and b) impossible to try try in criminal court? For at least a partial answer -- or at least, an important piece of evidence -- I would submit the pattern of Obama's decision-making as displayed since January 20.
On questions of security and civil liberties, Obama has issued split decisions. He banned torture and embraced preventive detention. He released the torture memos and held back the torture photos. He wants to reconstitute but preserve the military commissions.
These decisions look to me like the opposite of triangulation. They seem to be determined not by political calculus, but by a hard look at the facts and by listening to opposed arguments. On the photo question, Obama made it pretty clear that he had been turned by Gates and his generals. On the memo release, he held up at the behest of intelligence officials, decided to buck them, but offered concessions to allay those of their worries he deemed legitimate. Obama calls his approach surgical -- and from what he's revealed of the process, that seems to be an accurate description.
Obama's "trust me" is different in kind from Bush's. Bush meant "trust my gut," trust my good-faith effort to keep America safe, trust me not to abuse an authority that acknowledges no Constitutional bounds whenever a threat to national security can be invoked. Obama's trust me means "trust the process as I lead you through it."
That leaves ample space, of course, to oppose his policies on the merits. I for one am not convinced that we should accord the government the power to detain persons without trial. But I would be disposed to listen assuming Obama makes the case in more detail.
Obama is scrupulously careful about laying down the rules of engagement when he seeks a new authority. Supporters need to be equally rigorous in developing criteria to support or oppose. Personally, until I see evidence of an egregious error in judgement, I remain disposed to give him the benefit of the doubt.