Obama contemplates Executive Order for detention without charges

Saturday June 27, 2009 05:28 EDT

updated below - Update II)

When Obama first unveiled his "preventive detention" policy, many defenders praised him (and claimed he was different than Bush) because of his vow that -- as he put it -- "my Administration will work with Congress to develop an appropriate legal regime." But now, relying exclusively on three Obama officials speaking behind a veil of anonymity, Peter Finn and Dafner Linza of The Washington Post and ProPublica report that the White House is "crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely." TPM calls this "the latest installment in the Obama administration's tendency to mimic the Bushies on war on terror tactics." And the article itself points out the obvious: "Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war." Revealingly, the article quotes two Bush national security officials justifying the need for detention without charges.

Anonymous trial balloon articles like this one are difficult to comment on because it's obviously designed to announce that a certain policy is being considered before it's actually written, and so none of the key details is known. Would Obama's new detention powers apply only to current "War on Terror" prisoners at places like Guantanamo and Bagram, or would they also apply to future, not-yet-abducted detainees as well? Would these powers apply to detainees picked up anywhere in the world, far away from "war zones"? Would there be any judicial review or other meaningful oversight provisions so that -- even in theory -- this was something other than the unilateral, unchecked presidential power to detain indefinitely without charges? None of these important details is known (though the article notes that, under one White House proposal, "ongoing detention would be subject to annual presidential review"; the Emperor, sitting alone, will decree once a year whether they must remain in a cage).

This specific article is even worse than the usual one of its type, since it's particularly uncritical in passing along administration claims without any skepticism (I addressed each of the "justifications" for Obama's preventive detention proposal -- Obama has to do this because of what Bush did; we can't get convictions because of Bush's torture; it's common in War to do things like this, etc. etc. -- here). Worse, the article does not provide any information about the Obama officials whose mission the reporters are dutifully carrying out, so there's no way to assess their motives.

Those journalistic practices produce egregious sentences like this: "'Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order', the official said." I'd love to know which so-called "civil liberties groups" are pushing the White House for an Executive Order establishing the power of indefinite detention. It's certainly not the ACLU or Center for Constitutional Rights, both of which issued statements vehemently condemning the proposal (ACLU's Anthony Romero: "If President Obama issues an executive order authorizing indefinite detention, he’ll be repeating the same mistakes of George Bush").

All of that said, we already know that Obama wants a system of preventive detention without charges -- because he said so explicitly in last month's "civil liberties" speech ironically and cynically delivered in front of the U.S. Constitution at the National Archives. And it's hard to imagine how he won't get what he wants: Republicans are eager to grant the President this detention authority (Sens. Tom Coburn and Lindsey Graham have both gushingly praised Obama's proposal) and, as the Bush era proved, there are always more than enough Congressional Democrats to join with the GOP caucus to enact any new system of expanded detention and surveillance powers. Absent serious public opposition (and one recent poll shows overwhelming opposition), it seems highly likely that Barack Obama will wield the power to imprison people indefinitely without charges of any kind.

* * * * *

There is one point in particular I really want to highlight about all of this:

There has now emerged a very clear -- and very disturbing -- pattern whereby Obama is willing to use legal mechanisms and recognize the authority of other branches only if he's assured that he'll get the outcome he wants. If he can't get what he wants from those processes, he'll just assert Bush-like unilateral powers to bypass those processes and do what he wants anyway. In other words, what distinguishes Obama from the first-term Bush is that Obama is willing to indulge the charade that Congress, the courts and the rule of law have some role to play in political outcomes as long as they give him the power he wants. But where those processes impede Obama's will, he'll just bypass them and assert the unilateral power to do what he wants anyway (by contrast, the first-term Bush was unwilling to go to Congress to get expanded powers even where Congress was eager to give them to him; the second-term Bush, like Obama, was willing to allow Congress to endorse his radical proposals: hence, the Military Commissions Act, the Protect America Act, the FISA Amendments Act, etc.).

That, for instance, is the precise pattern that's driving his suppression of torture photos. Two federal courts ordered the President to release the photos under the 40-year-old Freedom of Information Act. Not wanting to abide by that decision, the White House (using Lindsey Graham and Joe Lieberman) tried to pressure Congress to enact new legislation vesting the administration with the power to override FOIA. When House progressives blocked that bill, the White House assured Lieberman and Graham that Obama would simply use an Executive Order to decree the photos "classified" (when they are plainly nothing of the sort) and thus block their release anyway. In other words:

We'll go to court and work with Congress so we can pretend that we're not like those bad people in the last administration, but if we don't get what we want by doing that, we'll just do it anyway through unilateral Presidential action, using the theories that the last administration so helpfully left behind and which we've been aggressively defending in court.

This was also the mentality that shaped Obama's "civil liberties" speech generally and his "prolonged detention" policy specifically. In that speech, Obama movingly assured us that some of the Guantanamo detainees will be tried in a real court -- i.e., only those the DOJ is certain ahead of time they can convict. For those about whom there's uncertainty, he's going to create new military commissions to make it easier to obtain convictions, and then try some of the detainees there -- i.e., only those they are certain ahead of time they can convict there. For the rest -- meaning those about whom Obama can't be certain he'll get the outcome he wants in a judicial proceeding or military commission -- he'll just keep them locked up anyway. In other words, he'll indulge the charade that people he wants to keep in a cage are entitled to some process (a real court or military commissions) only where he knows in advance he will get what he wants; where he doesn't know that, he'll bypass those pretty processes and assert the unilateral right to keep them imprisoned anyway.

A government that will give you a trial before imprisoning you only where it knows ahead of time it will win -- and, where it doesn't know that, will just imprison you without a trial -- isn't a government that believes in due process. It's one that believes in show trials.

And here again, with this Executive Order proposal, we see this same mentality at play. According to the Post article, one motive behind the Executive Order is that "White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible." In other words: we'll be happy to work with Congress as long as they give us what we want; if they don't, we'll just do it anyway using unilateral presidential powers. It's certainly possible -- in fact, I'd say it's likely -- that if Congress passes a preventive detention law, it will be even more Draconian than the one Obama wants. But a President who recognizes Congressional authority only when he likes the outcome -- and ignores it when he doesn't -- isn't a President who actually recognizes Congressional authority at all.

* * * * *

What ultimately matters here is that we not lose sight of the critical point: no matter the form it takes, and no matter which route is used to implement it (act of Congress or executive order), indefinite detention without charges is a repugnant and tyrannical power. Democrats and progressives had no trouble understanding that fact during the last eight years, so they should have no trouble understanding it now. As The New York Times columnist (and Obama supporter) Bob Herbert put it this week: "Policies that were wrong under George W. Bush are no less wrong because Barack Obama is in the White House." Herbert also wrote:

Americans should recoil as one against the idea of preventive detention , imprisoning people indefinitely, for years and perhaps for life, without charge and without giving them an opportunity to demonstrate their innocence.

And yet we’ve embraced it, asserting that there are people who are far too dangerous to even think about releasing but who cannot be put on trial because we have no real evidence that they have committed any crime, or because we’ve tortured them and therefore the evidence would not be admissible, or whatever. President Obama is O.K. with this (he calls it "prolonged detention"), but he wants to make sure it is carried out -- here comes the oxymoron -- fairly and nonabusively.

Proof of guilt? In 21st-century America, there is no longer any need for such annoyances.

Human rights? Ha-ha. That’s a good one.

Just look at the rationale being invoked by Obama officials to justify all of this, from the Post article:

Tawfiq bin Attash, who is accused of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.

Little information on bin Attash's case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

I thought Democrats (and Obama himself) believe that information obtained via "harsh interrogation" is unreliable. Isn't that supposed to be a core Democratic belief? If so, why would we want to imprison someone as "dangerous" based on unreliable information obtained using those methods? If the accusations against someone were drowned or beaten out of another person, shouldn't we consider those coerced accusations too unreliable to justify keeping the accused in a cage for years with no trial? And if they're willing to repeat the accusations in court now that they're not being tortured -- and if we have independent, non-coerced evidence to prove the accusations -- why would past abuse bar the use of their testimony (as Marcy Wheeler suggests, the real reason why we'd want to prevent witnesses who were tortured from testifying in a court seems to be "because we're covering up our own torture")?

More important, look at the mentality being expressed -- and about to be implemented -- here: there may be instances where we cannot get convictions because of witness unavailability or other logistical problems, so we'll just imprison them anyway. Does it really require any effort to demonstrate how dangerous that mentality is -- that the President will have the power to order people imprisoned wherever there are some logistical barriers to obtaining convictions? If there's one principle that can be described as fundamental to the American founding, it's that the state -- and certainly the President -- do not have the power to order people imprisoned without charges. Thomas Jefferson said that trials by jury is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Why is this painfully obvious proposition still necessary to defend after the November election?

UPDATE: I posted this before, but Rachel Maddow's 7-minute commentary on Obama's preventive detention proposal was really superb and well worth watching:

On a related note: as I've written many times, the area in which Obama is replicating Bush abuses most egregiously is his embrace of Bush's secrecy obsessions. Jon Stewart last night had much to say on that topic. That Obama is adopting approaches similar to Bush's in these areas is a view that is obviously spreading -- even among Obama supporters -- and is becoming increasingly difficult to deny.

UPDATE II: Digby, today:

The irony, of course, is that the man who ran on transparency is actually turning out to be less transparent than the president he excoriated on the campaign trail for his secrecy. Bush and Cheney were pretty upfront about the fact that they believed they had the constitutional right to act in any way they saw fit, regardless of the accepted understanding of the constitution or congressional and judicial prerogatives. Bush declared "I'm the decider" and he meant it. This administration obviously believes it has that right as well --- it just pretends otherwise.

I suspect they understand that keeping the folks from losing that freedom loving, patriotic illusion of American exceptionalism is an important part of exercising American political power. And they're probably right. Bush and Cheney's biggest mistakes were in being honest about something nobody wants to know.

Relatedly, Booman -- a very enthusiastic Obama supporter -- documents multiple reasons to be suspicious of the claim that the DOJ cannot prosecute Tawfiq bin Attash (the example Obama officials cited in the Post article). That's why excessive secrecy is the linchpin of abuse of power -- it allows government officials to make dubious and misleading claims without any ability to verify them, all while they operate in the dark.

http://www.salon.com/opinion/greenwald/2009/06/27/preventive_detention/