A Hobbesian Choice for Obama?

On the issue of what to do with Guantanamo detainees, Barack Obama is between the proverbial rock and a hard place.

As he struggles with the political backlash from a Congress determined to keep Guantanamo terrorism suspects out of the U.S., his administration is reportedly preparing an executive order that would give him authority to hold prisoners indefinitely without trial, according to weekend media reports.

News of the order was reported by The Washington Post and ProPublica, an independent investigative newsroom, and published Saturday by The Post and later by The New York Times. It would involve some 90 Guantanamo detainees who are regarded as "too dangerous to release" but who cannot be tried in U.S. criminal courts because evidence against them was gathered by cooperating foreign intelligence services or because it is tainted by the suspects being subjected to harsh interrogation techniques.

The dilemma of what to do with these suspects is threatening to scuttle Obama's pledge to close the Guantanamo Bay (GITMO) prison camp by January 2010.

In one of the few truly bipartisan actions recently taken by Congress, lawmakers of both parties and in both the House of Representatives and the Senate -- their eyes fixed firmly on the 2010 elections -- have expressed overwhelming opposition to bringing GITMO detainees to the U.S., even to stand trial. Amid charges of fear-mongering, they voted earlier this month to deny the administration the money it requested to fund the closure of the iconic prison.

But part of Obama's dilemma is that an "indefinite detention" regime would channel the position taken by his predecessor, President George W. Bush, and would also threaten to alienate the left-wing of Obama's Democratic Party, including the human and civil rights communities, which hailed the new president's decisions to outlaw torture and shutter Guantanamo.

Civil libertarians and many legal scholars were quick to condemn the idea of indefinite detention. Here's what some of them told us:

Jonathan Hafetz, a staff attorney with the American Civil Liberties Union, (ACLU), said, "It would be highly disappointing if President Obama accepted the false proposition that a system of indefinite detention is either necessary or legal. It is neither. The suggestion that the President himself has the prerogative to declare individual enemies and suspend the core protections of the Bill of Rights smacks of the same assertion of sweeping executive power that characterized the last administration and that is antitethical to our basic framework of government."

ACLU National Security Project director Jameel Jaffer said, "To allow the government to imprison terrorism suspects indefinitely without charge or trial would fundamentally alter the character of American democracy. And a preventive detention system would be a human rights disaster whether based on a statute enacted by Congress or an executive order issued by the president."

Michael Ratner, president of the Center For Constitutional Rights, a legal advocacy organization that has mobilized dozens of lawyers to represent GITMO detainees, said, "Prolonged imprisonment without trial is exactly the Guantanamo system that the president promised to shut down. Whatever form it takes -- from Congress or the president's pen -- it is anathema to the basic principles of American law and the courts will find it unconstitutional."

Some Constitutional scholars were equally outspoken. Professor Francis A. Boyle of the University of Illinois law school said, "The International Covenant on Civil and Political Rights, to which the United States is a party, clearly requires that alleged terrorists be given a trial."

He added, "Unlike President Bush, President Obama is a lawyer and used to teach Constitutional Law. He must know better. The fact that President Obama and his administration are once again continuing the illegal and totalitarian Bush administration policies does not augur well for the future of our Republic, its Constitution and Bill of Rights, as well as America's commitment to the Rule of Law."

But opposition to the indefinite detention idea was not limited to the Left. Bruce Fein, a well-known Conservative who served in the Department of Justice during the Reagan presidency, said, "Indefinite detention without accusation or trial is a terrible idea. If the United States government is unable to assemble evidence of guilt (including conspiracy to provide material assistance, which criminalizes even unalarming plots in their embryonic stages) with all its staggering resources devoted to counterterrorism, including huge bounties for informants, then the suspect is probably innocent."

Ramzi Kassem of Yale law school said, "After years of hearing it from the Bush Administration, it is now plain that the phrase 'individuals who cannot be tried but are too dangerous to release' is code for situations where our government broke the law and tortured people and now cannot go to court with what it obtained through torture."

"This is a false dilemma. For centuries our system has stood for the principle that torture evidence is inadmissible as a moral matter and because it is unreliable. Our government thinks certain individuals are dangerous because of what it learned by torturing them or others. That information is as worthless in this context as it would be in any other. If all we have on someone is torture evidence, then that person should be let go. That is what the rule of law has always meant in this country."

Chip Pitts, head of the Bill of Rights Defense Committee, said, "In its relentless search for "pragmatic solutions" and "compromises", the Obama administration seems to continually neglect the larger, systemic costs of perpetuating the legally flawed, constitutionally imbalanced, and ineffective Bush approaches. Such an executive order would not only taint any legitimate prosecutions of terrorists in U.S. courts (by establishing this "shadow" system where difficult-to-prosecute suspects could be held by executive fiat), but would also jeopardize prospects for restoring U.S. leadership and success on national security as well as other foreign policy goals. At a time when the U.S. is rightly criticizing Iran for using precisely such techniques, it is ironic in the extreme that the administration is considering institutionalizing such regressive approaches here at home. The ability of the global system to respond to terrorism, economic crises, and other challenges not yet perceived vitally depends on maintaining open societies premised on universal and fundamental human rights -- an insight the United States forgets at its peril."

He continued: "The Obama Administration now seems to be proposing that, instead of our tested system, we should improvise a new mechanism that will allow us to use torture evidence, a system that will allow us to get away with breaking the law, a system that delivers convictions but not justice. This new system would inevitably dilute our commitment to the rule of law, both perceived and real."

"It will also mean that the United States will have formalized a double standard in its administration of justice. One set of individuals will get the full panoply of legal protections afforded by our Constitution while another group -- mostly or exclusively composed of Muslims -- will get justice light and indefinite detention unreviewable by a real court."

And Prof. Brian J. Foley of the Boston University School of Law said, "Indefinite detention based on evidence that cannot be presented in a U.S. court is likely indefinite detention based on unreliable evidence (confessions extracted by torture, hearsay and other un-cross-examined testimony and hunches that may be infected with bias or mistake). Locking up the wrong people will not help us prevent terrorism and indeed might mislead us into believing we have diminished the threat."

But other observers were more cautious. Prof. David M. Glazier of the Loyola Law School in Los Angeles said, "It is hard to judge the legality of the Obama Administration proposal because of the vagueness in the reporting. The real legal flaw with Guantanamo is not the concept of indefinite detention, but rather the failure to conform it to the law of war. Confinement in prison cells, coercive interrogation, and even routine shackling of prisoners all violate the law of war."

According to The Washington Post, "Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order." Such an order could be rescinded and would not block later efforts to write legislation.

But CCR's Ratner disagrees. He said, " If the last eight years have taught us anything, it's that executive overreach, left to continue unchecked for many years, has a tendency to harden into precedent."

Nor is this option is not without political risk for Obama; it could anger lawmakers who could see it as an "end-run" around Congressional authority.

Among the few lawmakers publicly opposed to indefinite detention is Wisconsin Democratic Senator Russ Feingold. In a letter to President Obama, he wrote that indefinite detention poses a risk "establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security."

In a May speech at the National Archives, Obama said he was considering indefinite detention for some prisoners. He suggested that it would include congressional and judicial oversight. "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," he said.

In his May speech, the president outlined five strategies the administration would use to deal with them: criminal trials, revamped military tribunals, transfers to other countries, releases, and continued detention.

On the day Obama took office, 242 men were imprisoned at Guantanamo. Since the inauguration, 11 detainees have been released or transferred, one prisoner committed suicide, and one was moved to New York to face terrorism charges in federal court. Administration officials told The Washington Post that the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release.

The other half of the cases, the officials said, present the greatest difficulty. Attorney General Eric H. Holder Jr. agreed with an assessment offered during congressional testimony this month that fewer than 25 percent of the detainees would be charged in criminal courts and that 50 others have been approved for transfer or release.

In strictly political terms, Obama is presented with a Hobbesian choice: The Left of his party is already disillusioned by some of the actions the president has taken: invoking the State Secrets Doctrine, arguing that prisoners at Bagram Air Base in Afghanistan have no rights, refusing to comply with court orders concerning the release of the torture photos, delaying the declassification of the CIA Inspector General's 2004 report, distancing himself from any independent inquiry into the misdeeds of his predecessors, and so forth.

If he opts for "indefinite detention" or, as the Administration likes to put it, "preventive detention," a large slice of his base constituency will go ballistic. So, if he were a cynic, his political calculus might be: "Where can they go?" John McCain?

But if he decides to travel the path of human rights advocates and most of his fellow Constitutional lawyers, he will face the wrath of a Congress -- in both parties and in both Houses -- whose governing principle is reelection and whose time horizon extends no further than 2010 mid-terms. And these are the people he needs to transform the "change we can believe in" into law. But not in their backyards!

Not an easy choice. In order to govern, a president has to win. Is this tug-of-war winnable? How? You tell me -- I'd love to hear from you, gentle readers.

Meanwhile, maybe we should all be happy we're not the president.

Comments

[greatscot]

Bush II was never a world traveller, and he'll probably just stick with visiting Canada or France, where he knows he probably won't be arrested for his crimes, but Obama likes his foreign trips, and if he starts arresting people and imprisoning them (or keeping them imprisoned) on his say-so alone, with no trial, no justice, no due process, then he's no different than any other tyrant. If he violates peoples rights, then he, President Obama, will be forced to answer for it, if not in the U.S. then in some other venue. When are this country's leaders going to understand that NO ONE is above the law. Congress needs to step in and put real limits on the Presidency. The whole situation with signing statements, to give another example, is intolerable and undemocratic - tyrannical really (look up the word!). I thought that the Great Charter agreed to by King John at Runnymede in 1215 established limits to the sovereign's power? Obama is being romanced by the right wing, either that, or he is not what he claimed to be during his campaign. If he is showing his true colors, there is going to be a revolt in this country!

[j0em0mma]

Where can they go? They don't have to switch parties, they just won't vote. Participatory Govt is a two way street. People have to be engaged and their elected officials have to give them what they want. If one doesn't participate, there's a good chance the other will cease to.

[GreatNews27]

Just another nail in the coffin of The United States of America. Maybe the final one.

[jsgaetano]

Obama lost my vote when he, as a Senator, voted to exempt Bush from FISA and wiretapping laws.

Not only is it unlikely he will win my vote back, it doesn't even appear he cares- he's too busy trying to please Republicans who will never, ever vote for him, or even give him any goodwill.

The Democrats need to stop putting up candidates with daddy issues- all they end up doing is selling out their party trying to please the Big Daddys of the GOP.

[SethBLiNK]

Obama believes in the rule of law, but he's a pragmatist. The Bush regime left him with this mess of 90 prisoners who may be too dangerous to release but because the previous administration took the easy, lazy way, are unconvictable.

So Obama is left with the hard choices, cleaning up their mess, while Cheney has a field day going on talk shows and saying he is putting his nation in danger.

[bascombe]

no courage to be found. just like clinton. the whole gentle campaigning thing was to make the presentation of the lies even smoother than clinton.

[lily]

Obama has a choice. He is just too cowardly to make it.

I have a choice, also. I won't be voting for anyone in 2012. There is nothing to choose from between Obama or a repug.

[GT3T]

Mr. Fisher,
I think you mean Hobson's Choice, when only one option is presented, and the "choice" is to take the option or not. http://en.wikipedia.org/wiki/Hobson's_choice

[TheIndependenceParty]

As I have written elsewhere on HP, Obama will have taken as his own the stinking corpse of that Bush Regime policy by issuing such an order rather than restoring our Nation to the rule of law. It will be a grave political error, and perhaps the undoing of his administration.

These broken men, neither tried nor convicted of crimes, are held in violation of US and international laws and treaties. Bush knew that even before he did it. Obama inherited that issue, and is faced with undoing the mass the child emperor left behind.

There is no middle ground. By persevering in the commission of Bush's crimes, Obama leaves America no refuge from this darkest chapter in our history.

[jcwtts1]

Please cite the laws and treaties, be as specific as possible. Also , which detainees are you speak about, the ones that were captured during a war or the others? Prisoners of war, which is what people seem to be missing here, have specific rights. I believe President Obama should grant these rights as soon as is practicable. But detention, prison camps, these things have existed in every war we have ever fought and they are neither proscribed by US law or International treaty.

[SilentK]

When was war declared by congress? I must have missed that one.

[ProfessorDuh]

There is NO WAR. A "Global War on Terror," defined as everywhere and forever, is a rhetorical device crafted to secure absolute, extraconstitutional power for the executive branch.

[jcwtts1]

As for unraveling his administration or ruining his chance for re-election. You're kidding right? His numbers are fantastic. Better even than the poll show because most of these polls are basic land line polls which skew old and conservative.

J

[AnotherTry]

Ha. Just wait till 2010. You all will probably blame the gays for the democrats demise in a year. But those of us paying attention know that Obama has brought this on all by himself.

[greatscot]

We are 5 months into Obama's term. Already he's decided that he likes to spy on us just fine. He likes to read our E-mails and listen to our phone calls, so no change there. He used a signing statement just today to say he won't be following the law passed by Congress as it relates to the IMF and World Bank, so no change there. He's expanded Bush's wars from two to three, and is spending more than Bush did in Afghanistan (and now, Pakistan). Now he claims the power to imprison people at will, so no change there. He's strangely silent on the Palestine issue, now that Netanyahu's told him off, and he deplores the coup in Honduras, while knowing full well that one phone call from Hillary would reverse it. It sure looks like the Obamas are settling-in well to the perquisites of office, including the holy aura of majestic entitlement that surounds most first families. If that's so, we the people will speak AGAIN, and he'll be gone by 2012.

[beaupritchard]

As you know republicans are found of mining the third world for workers as housekeepers gardeners nannies ... well ... why not offer each a detainee.

[strangelet]

Thanks to all who beat me to pointing out that it's "Hobson's Choice". As I recall, this refers to a situation where all the alternatives suck, but you still have to pick one.

Personally, this gentle reader has no problem answering Mr. Fishers's question. We should bring all of the remaining detainees to trial, incarcerate those that can be convicted, and deport those who are acquitted (I believe they are all non-residents, yes?). I do understand that some of these guys are dangerous, in the sense that they have enormous hostility to the US and its people. But none of them are what you could call "existential" threats. No one of them, or all ninety together, can bring about the extinction of the United States. Could they kill some Americans? Maybe. But so could tens of thousands of other militants.

What supposedly sets the US apart from other states is its committment to individual rights. Even those accused of crimes have rights. The notion that people can be imprisoned indefinitely (that is, for life) because the government considers them dangerous (but cannot prove it) is an abandonment of the fundamental principles that used to define us. This way lies Rome, or the USSR, or the PRC -- the survival of the state is overwhelmingly important; the rights we used to consider definitive are now optional.

[jcwtts1]

Problems, first, trying a prisoner of war is against the Geneva Convention Articles. Second, he can't bring them here, congress voted to deny him the money, third, and most important, no country will take them back. You can't deport someone when his country of origin says, no. So what will happen is, and I can't believe this madness has any validity, if a guy gets found NG, which is likely in your scenario, after a trial where all the evidence is tainted and fruit from a poisonous tree, you see them as deportable. Please tell me the name of One country willing to take them? Because if they are here, and tried, what happens if their country doesn't take them back? My opinion, we either hold them indefinitely or we release them here in the US.

[Helzapoppin]

what planet have you been living on? These people have been DENIED POW status. A great many, if not most, were not even apprehended in either Iraq or Afghanistan.

[EducatedObserver]

Perhaps Mr Obama should have thought more carefully about this matter before loftily promising to close Guantanamo, during the recent election campaign.

Now, he has only himself to blame.

[jcwtts1]

No, he has thought it through. Gitmo is an abomination. Torture, murder, who knows what has gone on there. Move them here to either a prisoner of war camp, or a super max prison. Either place will be safer.

J

[Brett Paatsch]

Sure its winnable if Obama works smart - and if Obama cares enough to get the right thing done.

Whenever a majority of Congress seems reflexivly predisposed to oppose the provisions of existing treaties on short term political grounds Obama should sponsor a bill suggesting the withdrawal of the US from those treaties so as to avoid the damage of overt American hypocrisy. He should point out their inconsistencies over matters of supreme law (under the Constitution ratified treaties are US supreme law) and invite them to choose between amending the law to accord with their true values or upholding it.

[PrickliestPear]

That is actually a brilliant idea.

[rf dude]

I have a Fortress of Solitude in the Arctic that I will gladly offer

as a haven for these Lost Souls - but they gotta

bring their own longjohns...
--

[Maezeppa]

Careful! These leaks may be anti-Obama disinformation tactics.