National Security vs. Our Values: "The Toughest Issue We Will Face"

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.

Comments

[oldgeek1]

It is not National Security versus our Values! There is no either or here. Protecting our values is directly and Inextricably interrelated to our National Security.

[jsgaetano]

When times get rough is when you see what people are really made of. So when times got rough, the inner America-hating facist of the GOP came to the forefront.

The bad thing was, it lead to a systematic dismantling of American's rights, our reputation, and our financial system. The only good thing out of it was the true face of the Conservatives was revealed for all Americans to see... and a vast majority of them rejected it.

I don't believe conservatves have given up on being a threat to America. But fortunately, they aren't in charge anymore, where they were allowed to do the most damage they possibly could. Sadly, however, their looting of the US Treasury will likely fund their future treason.

[tbone99]

We are already using the philosophy of "prevention detention" to some extent in our own country- it is called gang injunction. It is not much different from the "black codes passed after Reconstruction to limit African American civil rights or laws used before the Civil War to prevent slaves from gathering in groups of more than two or three.
Essentially it is a law amongst a certain group of people to communicate with each other so as to prevent
insurrection based upon race. It is never used against white people.

http://en.wikipedia.org/wiki/Gang_injunction

[tbone99]

should read law AGAINST a certain group of people

[mendelcrosses]

What should we do with "detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people."
############
That extract is exactly what is wrong with Americanism today.

How can you declare someone a "clear danger" and yet say u have no evidence of them being dangerous,thus "can not be prosecuted". What happened to "pressume innoncent untill proven guilty?"

By that extract what the author of this article is pushing is the Bush doctrine of "Pre-emptivness". Its simple,if after 8 years you still can not find evidence ,even after torturing them,then surely theres none. After all Dick claims Torture works,so if after Torture nothing comes up,then surely theres nothing there.

[tbone99]

Interesting how Cheney has proven himself guilty over and over on national tv but still faces no detention.

[JillQ]

Unfortunately, some of the presidents words are missing from this debate. There may be evidence, but it is tainted due to improper interrogation or behavior, thus eliminating said evidence from being used in a court of law. Re-read the transcript of the speech: the president will use the legislature and the judicial system to decide what to do with this certain group. If, in the end, there is no constitutional defense of detainment, they may have to be returned to the country they were initially captured. The process must be allowed to play out.

[countthevote]

The real reason that republicans don't want detainees brought to American prisons is that they might be aquitted. These detainees have not been proven guilty of anything yet. Do we believe in innocent before proven guilty or not? Do we believe in our Constitutuional rights or not? After all one of the reasons sold to us on invading Iraq was to 'export or democratic values'?

The real reason republicans don't want fair trials for the guantanamo detainees is because the republicans will be found guilty of violating America's most precious values.

[listen2elvis]

Not all Republicans! You are very, very sadly mistaken if you honestly believe this is true of all or even most Republicans.

In fact, the" Ron Paul Republicans" are at the forefront of fighting for justice for these detainees, and re-instating our Constitution.

It is absolutely ridiculous how partisan some people are. To the extent that it blinds them and cripples their judgment.

[tbone99]

Ron Paul republicans should just call themselves libertarians for all the sway they have in the party

[Angelaaaa]

There is a reason why hearsay is not included as evidence - it is incredibly unreliable. If this is the basis upon which we decide that these people pose "a clear danger" then the conclusion is simple. The danger is hardly clear at all. In fact, it is just hearsay.

As for those who may have committed a crime but could not constitutionally be convicted even by a military commission - why not? If the evidentiary rules for a military commission are substantially weaker than a federal court and they still can't conceivably get a conviction - how strong is the evidence? If it's that lousy, then there's a really, really good chance the accused may NOT have a committed a crime.

And those who have not yet committed a crime but "who nonetheless pose a threat to the security of the United States." Well, that's every gun-toting, hoodie-wearing, left/rightwing, red-neck, fundamentalist, Christian, teenage/middleaged malcontent politician­/post-offi­ce worker out there.

Good luck with that one.

[TremoluxMan]

A fundamental point is overlooked by Mr. Stone: In all past conflicts, some formal declaration of hostilities was in place legitimizing indefinite detention. In WW I & WW II, there was a formal Declaration of War. The U. N. sanctioned the Korean police action. Viet Nam at least had the trumped up Gulf of Tonkin Resolution. But Iraq and Afghanistan have no real legitimate declaration of hostilities between the U. S. and some foreign entity. The U. S. unilaterally said, in essence, get ready, 'cuz here we come.

My feeling is, if there is not enough untainted evidence to convict someone in custody, then they must constitutionally be released, distasteful though it may be. Deport them or deposit them where they were taken into custody or to their country of birth. Keep them under surveillance.

Like it or not, you can not legitimately claim to be fighting to preserve a democratic constitutional way of life by violating its founding principles. Expediency is the enemy of freedom and liberty. Read about the way General Washington directed his troops to treat British prisoners. And the Continental Army was taking on the weight of the British Empire. Are the institutions of the nation so fragile they will collapse in dealing with a few dozen radicals?

Another point: What if another nation was proposing doing to U. S. nationals what the U. S. is doing? And has done? The outrage would be deafening.

[dwright]

Other nations would have already killed our people. Or, remember all the talk about how there were still POW's being held in Vietnam and hidden for years and years.

[mendelcrosses]

McCain and many others did come back,didnt they?

[LeLoup]

"What should we do with "detainees at Guantanamo who cannot be prosecuted yet *who pose a clear danger* to the American people."

Excuse me, but...how do we know about this much touted "clear danger"? Say who? Based on intelligence? Coming from where? How reliable are the sources, the methods?

Isn't it the role of a Court of Law to resolve these questions? This would be much more valid and legal than the say-so of some anonymous Homeland Security officials.

Without much further discussion and analysis, this simple sentence left standing, completely invalidates the debate.

[AnnfromCA]

There is not going to be reasonable dialogue here.

[Itchybiscuit]

The British Government introduced internment (detention without trial) to Northern Ireland on 9th August 1971. It was abandoned a year later when the British Government took NI under direct rule.

It didn't keep anyone safe back then and it's certainly not doing so now that America is doing it in Guantanamo.

Without values, safety is an illusion.

Itchy.

[Readbetweentheelevens]

There is no constitutional authority for what he proposes, if the same is to occur on U.S. soil -- end of story. Obama thinks this will help our image around the world? He really does deserve the moniker, "Bushbama.­"

[dwright]

Presidents have been stuck in these various types of conundrums before during times of war and other things before, people just were not paying attention.

Lincoln - Habeaus Corpus
Truman dropping 2 atomic bombs on 2 cities full of citizens not engaged in war
Teddy Roosevelt took over Tangier in Morocco
Teddy took the land, which is now Panama away from Columbia and said I am going to MAKE a country so that I can build my canal.

the illegalities go on . . . Bush/Cheney got us into this current mess and now we are blaming it on Obama. It should have never been done in the first place. I am a liberal, but . . . I am also a realist and believe there are probably a couple of these folks that pose a clear and present danger and I trust our President to sort them out.

I would assume that the few individuals that might fall in to this category actually say that if they can get out they will kill Americans. One of the terrorists actually said that in court during the 1st Trade Center bombing trial. What do you do with those individuals is the million dollar question. If you say send them to their own country and their own country kills them - will that make you happy? Or, if they bomb an American Embassy, and then we catch them - will that make you happy? This is something of a dilemma that is

[serena1313]

The 1st World Trade Centre bombers were tried in a US court of law and sentenced to life in prison without chance of parole. They are locked away in the US supermax prison in Florence, Colorado.

So to answer your question: do likewise with the Guantanamo detainees. If some are found not guilty, what do we do with them then? Therein is the dilemma. If Bush had followed the law we wouldn't have to be dealing with this.

Furthermore we must not overlook the fact that a majority (85 % - 90%) of the prisoners are not "terrorist­s." And there are a few who had only committed petty crimes -- such as theft. So why should they be incarcerated for the rest of their lives?

It is not unreasonable to imagine any individual who is wrongly imprisoned without end, abused and tortured, and denied access to the courts to prove his/her innocence feeling a great deal of resentment and anger toward the US. But does that mean the person is a danger to our national security?

Consider, too, evidence based on hearsay and/or false confessions elicited from being tortured does not solve the problem either.

I do not know the answer to where the prisoners who are found not guilty should go, but they must be given their day in court. Like it or not, that is the law.

[dwright]

I guess you have a better answer. What is your solution? I think that Bush got US into this mess and the question for a few of these individuals is not as easily solved as wrapping it in the Constitution. President's have done things many times that they felt was in the best interest of the people and no one peeped. I hope you were just as active an insulting when the Patriot Act was actually dismantling our Civil Rights and Liberties here.

[gorideabike]

If they can not be tried, they must be released. There, that wasn't so hard, was it? And in all fairness they are due compensation for illegal detention too.

[swoop187]

Part 2

Now my whole point is these people have no right to our judicial system and judicial precedings for the simple fact a through investigation into their 'charges' in some cases would have been impossible given the circumstances. Now, if some of these detainees were arrested on American soil as "homegrown terrorists" then they have every right to our judical system given the fact that a proper investigation into their crimes was possible.

Now, for these alleged terrorists who allegedly committed their crimes on foreign soil , they have no right to our judicial system and furthermore I have no faith in the American public to make a non-partisan ruling in a trial based on political ideology on both sides of the political spectrum.

Now lets not forget these fat cat attorneys that will be coming out of the wood work to defend these people for personal notoriety and a little bit of ink in the papers.

This is a judicial disaster from hell in the making. Now if the US was smart they would in bed these peoples skin or organs with microchips, load them up in a C130, give them parachutes and dump them out the back at 40,000 feet somewhere over the Middle East.

[TruthJusticeForAll]

I realize you are expressing your personal feelings. However (& fortunately), your feelings have no bearings on the REQUIREMENTS of our Constitution & Rule Of Law. Sometimes the rule of law can get in the way of our emotional response. I realize this can be a source of annoyance to a great many people. However, you need only realize that the factor many find annoying is the factor which separates our system of government from the governments of many other nations & defines the difference between fascist, communist &/or other totalitarian governments & ours. Without the difference, we are no better.

[swoop187]

In reality we already offered some of these alleged terrorists to their own nations and these nations refused to take them back... Question? What do we do with them? guilty or innocent?

Also, I would love to ask anyone how these people are entitled to our judicial system? THEY"RE NOT, if anything these alleged terrorists are entitled to their nation of origins judicial system on the simple fact they are CIVILIANS. Besides, look at our judicial system and how it works, detectives and police officers make a case gathering forensic evidence, do some of you actually think we have forensic teams on the battlefield that have time to take forensic evidence? NO, because they know if they tried they would get brained by a sniper. Of course that only goes for the enemy combatants that are being held for killing American soldiers on the battlefield . Now the majority of these fools are being held on conspiracy charges due to raids and others on acts of terrorism.

[joanno]

China, a country dealing with their own variety of internal "terrorists" for decades, uses a re-education process to mentally and socially defang those they deem to be threats, often of a violent kind. I recently heard a story about how Saudi Arabia has taken many of Gitmo's former prisoners who were released to them and put them through a smiliar process headed by Muslim clerics who deftly undermined the fanatic religious ties so many of these "terrorists" espose. They claim a huge success rate. Perhaps we should work closely with them to find ways to reduce the threat of future violent acts. If anyone has really done something illegal, they should face the consequences. For those whom we only suspect or fear, a process like what the Saudis are doing may be worth considering. Bottom line is this: the chief sign of a grown-up is one who cleans up their own messes. As a country, we allowed our leadership, even encouraged our leadership, to make a mess of the "war on terror". Messes are always hard to clean up. It's time to move beyond our childish impulses of fear and do what is right. There are creative ways to do that.

[bobwalters]

I think that used to be called "brain-washing"

[dwright]

Manchurian Candidate ring a bell?

[tbone99]

I think by using Rush Limbaugh and his ilk across te country , especially in middle America where thre are few other radio stations we are accomplishing the same thing.