Moving on, Obama dealt with the question of 21 prisoners whose release has already been ordered by the lower courts (following the Supreme Court’s ruling last June, in Boumediene v. Bush, that the prisoners have habeas corpus rights), by rather over-egging the point that “this has absolutely nothing to do with my decision to close Guantánamo,” that “[t]wenty of these findings took place before I came into office,” and, as an almost apologetic footnote, which betrays, I think, his preference for his own inter-departmental review of the Guantánamo cases over those made by the courts, stating, “The United States is a nation of laws, and we must abide by these rulings.”
After dropping, in passing, the news that the review team has now approved 50 prisoners for transfer to other countries (a few weeks ago, it was just 30), Obama moved on to a topic that is at least as worrying to lawyers, civil libertarians and those concerned with constitutional issues as the proposal to revive the Commissions: those prisoners who, as the President put it, “cannot be prosecuted yet who pose a clear danger to the American people.”
Although it was refreshing to hear Obama state, “I want to be honest: this is the toughest issue we will face,” the examples he gave of prisoners who might be imprisoned indefinitely under a form of “preventive detention” – “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” – cannot be regarded as a separate category of prisoner from those, like Ahmed Khalfan Ghailani, who will face a trial in a US federal court.
Frankly, to even entertain the prospect that a third category of justice (beyond guilt and innocence) can be conjured out of thin air without fatally undermining the principles on which the United States was founded is to enter perilous territory indeed. Fundamentally, Guantánamo is a prison that was founded on the presumption that the Bush administration’s “new paradigm” justified “preventive detention” for life, and although Obama stepped up his assurances at this point in his speech – talking about “clear, defensible and lawful standards,” “fair procedures,” and “a thorough process of periodic review” – it is simply unacceptable that “preventive detention” (which he referred to, euphemistically, as “prolonged detention”) should be considered as an option, however much he tried to legitimize it by stating, “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.”
To put it bluntly, it doesn’t matter how much you dress it up. Look at the sentence, “Hold[ing] individuals to keep them from carrying out an act of war,” replace “an act of war” with “a crime, any crime,” and you will, I hope, realize why the proposed policy is so terrifying and so thoroughly unacceptable. If a President came to power promising to “hold individuals to keep them from committing a crime, any crime,” I’d be very worried indeed.
I’ll leave it to others to analyze the rest of the President’s speech, which dealt with broader questions of national security – including the “State Secrets” doctrine, the release of the torture memos issued by the Office of Legal Counsel, and the decision not to release photos of abuse in US prisons in Afghanistan and Iraq – not because I have no interest in these issues, but because I don’t want to distract attention from the two particular responses to the “mess” inherited from the Bush administration that I find deeply troubling: the decision to revive the Military Commissions, and the decision to push for a form of “preventive detention.”
I’m dismayed by the first, because, as I made clear, I think it represents an unnecessary and unjustifiable two-tier system, but I’m almost speechless with despair about the second, and would urge anyone who believes in the fundamental right of human beings, in countries that purport to wear the cloak of civilization with pride, to live as free men and women unless arrested, charged, tried and convicted of a crime, to resist the notion that a form of “preventive detention” is anything other than the most fundamental betrayal of our core values.