President Barack Obama's controversial detention plan for Guantanamo detainees keeps leaking.
First, anonymous administration officials said the president might authorize "preventive detention" for detainees through an executive order, shutting Congress out of the process. The White House pushed back, stating there is no such order right now. (That kind of nondenial, however, depends on what the meaning of the word "is" is.) Then Robert Gibbs added that the president would not rely on legal theories claiming an "inherent authority to detain people."
Yet either way, the president already announced his support for preventive detention in his speech at the National Archives.
It is a fundamentally radical, dangerous and potentially unconstitutional approach. Obama has faced little blowback thus far, however -- a revealing sign about the state of the Democratic-progressive infrastructure.
First, to begin plainly: Preventive detention is a system to imprison people without trial or independent oversight. It has scant precedent in American history.
It is equivalent to permanent detention, in that it operates indefinitely, without judicial limits, and can effectively institute life sentences. Implemented on a mass scale, in fact, preventive detention can look like internment. When a government forcibly holds enough people indefinitely without trial, it evokes the kinds of raids, detention and abuses of power associated with authoritarian states -- or darker periods in American history.
The administration's preventive detention plan "violates basic American values and is likely unconstitutional," Sen. Russ Feingold warned in a recent letter to Obama, cautioning that detention without trial "is a hallmark of abusive systems that we have historically criticized around the world." And if preventive detention is ultimately enacted, there is no way to predict whether this president -- or a future one -- would try to invoke a preventive detention law to hold U.S. citizens without trial.
Even George W. Bush, who as president pushed the boundaries of executive power, never proposed a statutory scheme to hold people indefinitely. If Bush had proposed the same preventive detention scheme, there probably would have been far more public outrage. Yet the point is actually much broader than partisan double standards.
The reception to Obama's radical proposal shows both the enduring trauma of Sept. 11 as grounds to undermine American principles -- regardless of which party is in power -- and the cohesive state of the Democratic-progressive infrastructure.
Obama does not stoke fear of another attack, to his credit, but he still invokes terrorism as a reason to ditch the military justice system that has long served the nation. The response to Sept. 11 was so special, in fact, that some preventive detention backers claim the system would be strictly limited to resolving cases from Guantanamo.
The pledge admittedly has a certain appeal: a one-time exception to put Gitmo firmly behind us. But that is not, of course, how law works. A precedent provides legal authority for an action precisely because it occurred before. And presidents tend to use new powers gingerly, rather than unilaterally abandoning them after one test drive.
Then, there is the missing backlash. The (potential) battle over preventive detention -- just like progressive disputes over torture, the public insurance option and economic reform -- tests whether the Democratic-progressive infrastructure that has been steadily built over the past eight years will function as an accountability movement or an echo chamber for a powerful presidency.
To be clear, a few legal groups such as the American Civil Liberties Union, the Constitution Project and the Center for Constitutional Rights, where I once worked, have strongly confronted Obama on detention policy. Some members of Congress, including Feingold and Rep. Jerrold Nadler, have also drawn a line in the sand. In the media, MSNBC anchor Rachel Maddow has been on the case, and several progressive bloggers have called out Obama for backtracking on his commitment to due process in closing Guantanamo.
Some of the largest liberal think tanks and advocacy groups have not organized against Obama's detention proposal, however, while many liberal voices in the traditional media have been silent. And the Democratic Congress restricted Guantanamo funding for political posturing, rather than prioritizing an actual sentencing regime for detainees.
Despite all that, Obama officials still worry that preventive detention is too hard to pass in Congress, hence fleeting debate over whether to advance it by executive order. Just imagine how the proposal would fare if everyone put up a fight.
--Ari Melber writes a column for Politico, where this was first published.