In his speech on Thursday about Protecting Our Security and Our Values, President Obama touched on many of the challenges posed by the threat of terrorism. I want to address one challenge in particular: What should we do with "detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people." This is a fundamental question, because it cuts to the very heart of the concept of preventive detention.
The president explained that some detainees at Guantanamo will be be prosecuted for crimes in the federal courts of the United States. To the extent this occurs, it should be constitutionally unproblematic. The president explained further, however, that some detainees cannot realistically be prosecuted in the federal courts, because the procedural and evidentiary rules of those courts would require the exclusion of evidence that would be essential to secure their convictions.
This is most obviously the case with respect to evidence obtained through "involuntary" statements (either by the defendants or others) and various forms of hearsay evidence (for example, X testifies at trial that Y said that Z committed a terrorist act). Such evidence ordinarily would be inadmissible in federal court because its use in a criminal proceeding would violate the privilege against compelled self-incrimination, the due process clause, and/or the defendant's constitutional right to confront the witnesses against him.
The president proposed that because the government believes that these detainees committed criminal acts, it should be able to prosecute them in military commissions, which would not apply the same rules of evidence as federal courts. This proposal raises a serious question about the minimal standards of procedural and evidentiary fairness that are necessary to legitimately secure a criminal conviction. Obviously, for the government to jigger the rules of evidence, whether in a federal court or a military commission, in order to convict an individual of a crime on the basis of unreliable proof would violate the constitutional guarantee that no person shall be convicted of a crime "without due process of law."
The president correctly noted that we have used military commissions throughout our history, but the question in this situation is whether the proposed abrogation of the ordinary rules of evidence in order to convict these detainees is consistent with the very values that President Obama so eloquently celebrated in his speech. This is a difficult question. It is one we as a nation must seriously debate.
There is still another group of detainees at Guantanamo. This group consists both of those who may have committed a crime but could not constitutionally be convicted even by a military commission and of those who have not yet committed a crime but "who nonetheless pose a threat to the security of the United States."
The president pledged that he will not "release individuals who endanger the American people." This is a call for preventive detention, plain and simple. Under this policy, the United States will detain individuals, even though we cannot prove by the standards required for criminal prosecutions, that they have committed a crime, because we fear that they might commit a terrorist act in the future.
As the president conceded, "this is the toughest issue we will face," for the United States has long set itself against the very idea of preventive detention. Indeed, it is for this reason that Anthony Romero, the Executive Director of the American Civil Liberties Union, declared in response to the president's speech that this policy "is a fundamental violation of the Constitution."
But it is not so simple. In fact, preventive detention in wartime is hardly unusual. We routinely confine prisoners of war in detention camps until a war is over. The purpose of such detention is not to punish, but to isolate. Prisoners of war have committed no crime, but it has long been deemed a legitimate incident of war for a nation to isolate captured enemy combatants to prevent them from returning to the battlefield.
It is also commonplace in wartime for a nation to detain enemy nationals who are thought to pose a danger to the nation. During World War II, for example, more than 9,000 German, Italian and Japanese nationals were taken into custody in the United States (representing roughly 1% of the German, Italian and Japanese nationals in the U.S.), because they were found, after a hearing, to pose a potential threat to the national security. Many of these individuals remained in custody for the duration of the war, even though they had committed no crime.
These two practices -- detaining prisoners of war and detaining enemy nationals -- offer a reasonable analogy for the detention of individuals who, in the president's words, "have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden."
But the analogy is imperfect. In a conventional war, against a nation-state whose soldiers wear a uniform and whose citizens have a recognized allegiance to their own nation, it is usually easy to determine who is an enemy soldier or an enemy national. In the current situation, however, neither of these conditions prevails. It is therefore exceedingly difficult to determine whom to detain. The question is whether, with appropriate burdens of proof, evidentiary safeguards, and fair procedures, it is possible to surmount this obstacle in a principled manner that is consistent with our values as a nation.
Another often-voiced objection to preventive detention in this context is that because we have no idea when the "war on terror" will end, we cannot know how long these individuals will have to remain in custody. This objection, too, may not be insurmountable, for this is not the first war we have fought that had no certain end date. To the contrary, the end date of all past wars became obvious only with the benefit of hindsight. To deal with this issue, as President Obama noted in his speech, any program of preventive detention "must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified."
A third objection to this policy is that it would implicitly authorize other nations to follow our lead and to institute their own preventive detention programs against citizens of other nations whom they see as a threat. Should the United States undertake a policy that would legitimate such conduct by other nations?
None of this is easy. But it is within our capacity to make reasoned judgments about how best to protect our national security while still preserving our national values. By eschewing both fear-mongering and knee-jerk invocations of civil liberties, President Obama has taken an important step towards initiating a serious national conversation about these exceedingly difficult issues. And a debate is, indeed, necessary, for these questions go to the very core of who we are as Americans.