Victory on preventive detention law: in context

When BarackObama gave his "civil liberties"speech at the NationalArchives in May, he advocated a new scheme of preventive detention for detainees whom he claimed "cannot be prosecuted yet who pose a clear danger to the American people,"and he unambiguously vowed to develop a new statutory regime, enacted by Congress, to vest him with the power of what he called "prolonged detention":

I know that creating such a system poses unique challenges. . . . 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. As our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. . . . [I]f we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future.

Obama has now changed his mind about seeking a new law, and instead will continue to detain Terrorism suspects without charges under the current system (the one used by Bush/Cheney as well):

The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday.

Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.

In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.

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 theBush administration and the GOPCongress, but also Obama and theDemocratic 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, theCongress 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 andCongress are at odds, it is Congress demanding greater powers of executive detention (as happened when Congress blocked Obama from transferring Guantanamo detainees to theU.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 anchorever 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.

All that said, in a practical sense, this is still an extremely incremental -- one might even say cosmetic -- development. After all, the Obama administration is continuing to assert the power to detain people without charges or trial based on the Bush/Cheney theory (accepted by several courts) that they already have implied statutory authority (under the 2001 Authorization to Use Military Force) to do so and therefore don't need a new law. It's true that theObama administration, to its credit, is no longer relying on the theory that thePresident has "inherent authority" to detain Terrorism suspects without charges, but that makes no practical difference since they claim the same exact power based on the AUMF. And, according to the New YorkTimes, Obama's decision not to seek a new detention law"applies only to those already held at Guantánamo . . . it remain[s] an open question whether the administration would seek legislation or establish a new system for indefinite detention of suspected terrorists captured in the future."

So all one can really say about all of this is that while no improvements have been made, something that would have been extremely bad has been averted, at least for now. And while the administration continues to assert the power of indefinite detention even without a new law, at least detainees now have the right of habeas corpus review as established by the 2008 Boumediene Supreme Court decision, and thus far, 30 out of 38 detainees have won their habeas hearings and have had courts ordered them released (although 20 of the"winners" continue to remain imprisoned because we can't place them anywhere). Whatever else might be true, in our political culture, especially when it comes to Terrorism and civil liberties, blocking a new and terrible development -- even as it keeps very bad things largely in place -- is an important victory.