Saturday, May 23, 2009

Change I need to believe in

The President’s speech on Thursday gave me considerable pause.

I don’t mind that Guantanamo is being closed. It doesn’t really matter to me either way where prisoners are held; unlike the GOP (and their classic attempt at terror-inducement with their O Fortuna video), I have confidence in our ability to confine people. We manage to confine criminals of all sorts; we even managed to confine a terrorist like Timothy McVeigh—so what are they so afraid of?

I’m happy that some rule changes have been implemented to remove the worst of the abuses of the Bush administration, and look forward to more oversight and the firm application of the rule of law.

But I have a real problem with these three paragraphs:

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.

In brief, President Obama is advocating “prolonged detention” for those who we cannot bring charges against, but who we suspect still constitute a danger to this country.

That’s not how the rule of law works.

The Bush administration botched these trials. By using torture to force unreliable evidence out of people in a desperate attempt to link al Qaeda and Iraq, they made all that evidence inadmissible in a court of law.

If the prosecuter botches the case in a murder trial in the United States, the prosecuter loses the case, and the guy goes free. That’s how it works, because our rule of law states Innocent Until Proven Guilty.

Yes, the Bush administration has probably made it impossible to prosecute some of these people. The right thing to do is to release them. It may not be the safest thing to do—but those are the consequences of what Bush, Cheney et al. have brought us. They screwed the cases up, because they didn’t follow the rule of law, and now the right thing to do according to our laws is to release these potentially dangerous people.

Them’s the breaks.

Obama’s suggestion that prolonged, indefinite, endless detention without trial is actually on the table shakes my confidence that this is a President who understands his oath.

The one advantage, on this one point, over the Bush administration, is that at least he was up front and honest about it.

Yes, it’s very unfortunate that the cases were screwed up to the point where we can’t prosecute some of these guys. Yes, releasing them may result in lives lost. Thanks, Bush administration, for screwing up the cases! But it’s Innocent Until Proven Guilty.

If we can’t prosecute, release them. That’s how the law works. Indefinite detention is not how the law works.

I voted for change—and the most important part of that change was having a law-abiding president. Can we please have a law-abiding president?

If they come back to hurt us, I have confidence in our ability to get ’em, provided that we’re on top of the intelligence.

But until then, let us obey the law. Please.