Preventive Detention and the Rule of ___

I had an interesting discussion yesterday with one of my tutors about President Obama's terror policy. The tutor is an expert on American history and has done significant work on the Constitution, Supreme Court, and development of the American legal system. He expressed some disappointment with Obama's speech at the Archives, calling his terrorism policy "a carbon copy of Bush's." We went back and forth over that remark for a few minutes, but ultimately what he was getting at was the policy of preventive detention - also known as prolonged detention, administrative detention, and indefinite detention. This is the policy, in Obama's own words:

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're 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, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

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. 

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. 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.

This section of the speech has earned a fair bit of attention. Essentially, the President is announcing that we'll bring as many of the prisoners at Guantanamo into courtrooms as we can, but there are some who can't be tried. Those prisoners will remain locked up for as long as the government decides is necessary.

It's not clear that such a legal regime would be constitutional. Prolonged detention by the executive without trial was abandoned long ago in Western legal tradition, and it would be a clear violation of the rule of law to bring it back. That is why the President was so careful to point out that any system of prolonged detention would be subject to legislative and judicial participation and oversight - doing so would avoid (in theory, at least) arbitrary extended detention at the hands of the executive. 

In a helpful article unpacking the issue, the NYT referred to the practice of prolonged detention without trial as "at the very boundary of American law," and quoted Michigan law professor Monica Hakimi as saying that the practice would be "an aggressive approach that is not commonly taken in other Western developed countries." Furthermore, the system Obama is advocating is strangely dismissive of the role of U.S. courts in antiterror policy:

Civil liberties lawyers say American criminal laws are written broadly enough to make it relatively easy to convict terrorism suspects. They say Mr. Obama has not made the case persuasively that there is a worrisome category of detainees who are too dangerous to release but who cannot be convicted. The reason to have a criminal justice system at all, they say, is to trust it to decide who is guilty and who is not.

This, my tutor argued, was the crux of the issue. It's hard to imagine a situation in which conviction of these prisoners - if they are truly dangerous - would be so difficult. This is precisely the question Matt Steinglass poses:

But here’s my main question: what exactly is so hard about getting terrorists convicted in American courts? Under US law, even “providing material aid” to any “terrorist organization” is a felony. I mean, come on — the US can try university professors for “material aid” to a “terrorist” organization for recruiting donations to a Palestinian political and charity group that was not, at the time, considered a terrorist organization. How hard is it, really, to convict someone picked up “on the battlefield” in Afghanistan of having “provided material support” to the Taliban? This is US Code Title 18, Part I, Chapter 113B:

§ 2339B. Providing material support or resources to designated foreign terrorist organizations

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. 

Now, I think this law is overbroad. (Here’s Georgetown constitutional law professor David Cole detailing the reasons he thinks it’s unconstitutional. Cole: “President Clinton used IEEPA to label a U.S. citizen a ’specially designated terrorist’ without hearing, notice, or trial, and then to subject him to a kind of internal banishment, in which it is a crime for anyone else in the United States to provide him with anything of value.” And so on.) 

But it’s on the books. And are you seriously telling me that the Bush Administration’s torture regime has so thoroughly bolloxed the entirety of the evidence regarding detainees at Gitmo that we can no longer even prove they were doing anything to support any group on the State Department’s list of terrorist organizations? Any such group whose actions have resulted in “the death of any person”? If we can’t prove that about these guys, what are they doing in prison?

A fair question. President Obama, my tutor noted, gave the speech in the National Archives, which houses the Declaration of Independence, the Constitution, and the Bill of Rights. He referred repeatedly to "the rule of law" in his speech. But the rule of law means something - specifically, it means that there are certain things the government can't do, even if the situation seems to require it. If the President feels he needs to take extraordinary action beyond the law to protect America, that's one thing - but he shouldn't refer to his actions as being governed by the rule of law, and no legal tradition would recognize it that way. As my tutor put it, it's the difference between the rule of law and the rule of men.

It's not clear, of course, whether the president will take such extraordinary steps that test the limits of the Constitution. The details of his detention program are not clear yet, and the fight over the use of courts is far from over. I do have a fundamental faith in him to abide by the law, and I think he has shown a deep reverence for the Constitution which will prove crucial as he shapes America's terror policy after the closure of Guantanamo. 

Benjamin Wittes of the Brookings Institution, who was quoted in the NYT article, offers useful perspective on the complications of this issue:

For starters, I believe that quite apart from questions of presidential power, there is ample space under extant constitutional law for preventive detention in the terrorism context--just as there are preventive detention authorities under a variety of other statutes [...] Suffice it to say that American law tolerates preventive detention in a variety of contexts if the danger the individual poses is great enough and the proceeses for assessing that danger are adequate.

This issue, of course, is far from settled, but it's an important debate that will surely continue. He adds:

I do not believe the President has any power to act beyond the powers the Constitution grants him. Presidents, of course, have occasionally done so in good-faith efforts to defend the nation (and the Constitution). But I do not argue for the legality of such actions, however necessary under the circumstances that gave rise to them they might have been.

The problem posed to us by the rule of law is that it clearly limits our ability to do things we believe are necessary. I look forward to following the debate about the constitutionality of the president's new antiterror policies. I have faith that the debate will be carried out - as it has sadly not been in the past - with candor, intelligent and reasoned arguments instead of fearmongering, and with deference to American legal traditions. The problem with the debate over the Bush administration's antiterror policies wasn't that it wasn't worth having. It was that they approached the debate with obvious disdain for anyone who disagreed with them in good faith, and more importantly, for the law. They saw it as a hurdle to be jumped, rather than as a source of wisdom and a guide for their actions. Dick Cheney even said last week, "In my long experience in Washington, few matters have inspired so much contrived indignation and phony moralizing as the interrogation methods applied to a few captured terrorists." I'm sure he would say the same thing about the debate over detention policy, but that's because he never understood the importance of the issues at stake. Fortunately, we now have someone in charge who does.