04/17/2009 05:12 am ET | Updated May 25, 2011

The Guantanamo Detainees and the Obama Administration: A Meaningful Step for Civil Liberties

As an unabashed civil libertarian who sharply criticized many of the policies of the Bush administration, particularly in the "war on terror," I have high hopes for the administration of President Obama. I know many of the officials in the Department of Justice and I know that they, too, are committed to the protection of civil liberties. But it is easy to defend civil liberties when one is not also charged with the responsibility of protecting the nation's safety. Faced with that burden, the temptation to play it safe must be great, indeed.

Attorney General Eric Holder recently filed an important memorandum with the federal district court overseeing the habeas corpus petitions filed by more than two hundred of the individuals still detained at Guantanamo Bay. In this memorandum, the Obama administration made clear that it is "refining its position" with respect to the government's "authority to detain those persons now being held at Guantanamo Bay."

An important element of this memorandum is the new administration's repudiation of the Bush doctrine that the president has inherent authority as "commander-in-chief" of the armed forces to decide on his own whom he can detain, for how long, and under what conditions. The memorandum instead anchors its authority in congressional authorization and acknowledges that the president must act in accord with both the Constitution and the principles of international law. This is a much welcome return to the rule of law.

At a more concrete level, the most fundamental question posed by the detention of individuals at Guantanamo Bay can be stated simply: In what circumstances can the United States lawfully detain individuals on the ground that they might pose a danger to the nation? The central issue is one of preventive detention. Ordinarily, the Constitution and laws of the United States frown on preventive detention. Even if the government believes that particular individuals might be contemplating a criminal act, the government is presumptively forbidden to detain them unless and until they actually violate the law.

But this is not the general approach under the laws of war. The most obvious example is the prisoner of war. If the U.S. military captures enemy soldiers on the battlefield, it may lawfully detain them until the war is over. This is common practice under international law, although the detaining nation is bound to comply with the requirement of humane treatment of prisoners of war enacted in the Geneva Conventions. The point of such detentions is not punitive. Members of the enemy's military are not criminals. The point, rather, is to isolate these soldiers so they cannot return to the battle. That is why their rights under international law must be respected and why they must be released at the conclusion of the conflict (unless they have been lawfully convicted of criminal conduct).

This principle applies even to enemy civilians. Since 1798, the United States has authorized the president to detain enemy aliens who pose a danger to the nation. Immediately after the attack on Pearl Harbor, for example, the government detained more than 9,000 Japanese, German and Italian citizens who were lawful residents of the U.S. because they were suspected of engaging in "subversive activities, in espionage activities, or in other activities that are possibly detrimental to the internal security of the United States." (This was out of a total of roughly 900,000 German, Japanese and Italian citizens in the U.S. at the time.) By the time World War II ended, approximately 2,500 of these individuals were still in detention. As in the case of prisoners of war, such individuals were not interned because they were criminals. Rather, as a wartime exception to the general presumption against preventive detention, they were held to prevent them from engaging in acts "detrimental to the internal security" of the nation.

A particular challenge posed by the "war on terror" is that it is not a war between nation states. Moreover, the "soldiers" on the other side do not wear uniforms. It is therefore exceedingly difficult to know who are the "enemy." Citizenship is irrelevant, and the absence of uniforms makes it unclear whether someone is a harmless civilian or a dangerous combatant. (This is one of the reasons why international law requires soldiers to wear uniforms.) In such circumstances, as the Department of Justice argued in its recent memorandum, "it is well settled that individuals who are part of private armed groups are not immune from military detention." Indeed, throughout our history the United States has invoked this authority in conflicts with international pirates, Indian tribes, and the Mexican rebel leader Pancho Villa, as well as in the Chinese Boxer Rebellion, the Spanish-American War, and the Civil War.

What all this tells us, then, is that the government can lawfully detain individuals who threaten the national security of the United States. But it doesn't tell us when such detentions are legal. There must be some threshold level of proof to justify the detention. It is here that the Obama administration has made a significant step forward. The Bush administration asserted the authority to detain at Guantanamo Bay any individual who "supported hostilities in aid of enemy forces" connected to the Taliban or al-Qaida. But what does it mean to "support" hostilities? Does it include making a financial contribution to a pro-Taliban organization? Driving a car for an al-Qaida leader? Giving a drink of water to an al-Qaida soldier? This standard is far too open-ended to constrain the authority of the United States military to seize and detain individuals who have done nothing that poses a meaningful threat to our nation.

The new standard, delineated in the Justice Department memo, adds a single word: "substantially." Under the new standard, individuals may be lawfully detained at Guantanamo Bay only if they "substantially supported hostilities in aid of enemy forces." In the law, a single word can make a world of difference. Faithfully applied, this one word can help separate the truly dangerous detainees from those who pose no meaningful danger to the United States. This change gives substance to the Obama Justice Department's promise to ensure that the continued detention of any individual must be justified in terms of both "the national security" and "the interests of justice." It is in such small, but important steps, that our nation's dedication to civil liberties can be squared with our commitment to protect the nation's safety -- a step the Bush administration did not even think to take.

Of course, the difference made by the word "substantially" depends ultimately on who interprets it and how. This is a word that in the law can mean a lot or a little. It is in the real-world application of this word that we will see whether President Obama is truly committed to "the interests of justice," or whether this is all just smoke and mirrors.