On Wednesday the Justice Department announced Obama's plans for continuing indefinite detentions of individuals deemed “dangerous” by the government. Note that this is a designation rather than an adjudicated fact because those who are being indefinitely detained in this way are not being charged and will not be tried in a court, where facts and evidence matter.
According to Obama, the president now has the inherent power because of the “war on terror” – a war that has no possible end because it is a war on a tactic – to declare that someone is too dangerous to be free.
These suspects are so dangerous, in fact, that they are too dangerous to be put on trial.
The evidence of their possible future crimes is so strong that we will not wait until they actually do anything criminal, we must seize them and hold them before they do anything.
If we are wrong and turn out to be holding someone who wasn't going to do anything, we must nonetheless continue to hold them because the very fact that we held them unjustly when they were innocent will so enrage them that they will want to do something upon their release. Therefore, we must hold them indefinitely to forestall that possibility. Whatever we do is right, even if what we did is wrong.
Moreover, the evidence we have on these individuals is so compelling and so strong that we can't air the evidence in court, even in camera, behind closed doors. Our withholding this proof on national security grounds from the judge is actually protecting the detainee from consequences worse than our indefinite detention of them. Our refusing to share any of this information with you, the public, is also being done on your behalf.
You must trust us on that. We are your government. We have your best interests in mind. Even if we come to take you and accuse you of being a terrorist and hold you indefinitely, you must have faith that we have your best interests in mind. We would not do anything that wasn't justified. You voted for us, remember? And if you didn't vote for us, then too bad for you.
In May 2009 Obama stated that he planned to seek a new legal regime in which holding people without charges and without trial for prolonged periods would no longer be the sole decision of the White House but would involve the Congress and Judiciary. I wrote at the time that this proposal was even worse than Bush’s policies because what Obama was doing was legitimizing and enshrining into law Bush’s blatantly illegal policies.
Obama has now backed away from that plan. He is now claiming that he has the power to indefinitely detain people under Congress’ authorization in the wake of 9/11 to use force against al Qaeda and the Taliban.
Some people on the left are hailing this as a significant “victory.” Of what does this “victory” consist? Obama has backed away from his plan to get the Congressional stamp of approval over indefinite detentions and is now using the apparently “one size fits all” 2001 Congressional authorization to use force in the war on terror that Bush used to justify his warrantless wiretapping over all of us when the secret wiretapping was revealed. Bush’s argument was transparently false then. Obama’s use of the same argument now to justify indefinite detention is just as false.
Exactly how is this a victory? The fact that he hasn’t enshrined it into a new law is a good thing, I suppose, but his using an old resolution to justify holding people without end because the executive branch claims that these detainees might do something based on evidence that isn’t good enough to go to court on and is too sensitive to share with anyone isn’t what I would call a “victory.”
Obama is, after all, the one who suggested back in May that he would bring Congress and the Judiciary in as co-conspirators in suspending habeas corpus in the first place. So Obama deciding not to do this is the equivalent of someone telling you that they and their friends are going to rob you, tie you up, and hold you in the basement indefinitely, and then having that person decide, oh well, that he is going to do those things to you all by himself and not share.
"Aren't you glad that I didn't get my friends involved in doing this to you? Aren't you happy that it's just me? My friends, I assure you, are a nasty bunch."
This is how I would describe this "victory:"
Bush was the Decider. Obama is the Legitimizer.
It’s getting hard to tell who the good guys are when the “good guys” sound exactly like the bad guys. Reminds me of the old saw about ducks. If it looks like a duck, quacks like a duck, and walks like a duck, it is a duck.
If the president says that he has the right to override habeas corpus and the right to snoop at all of our mail and electronic communications, if the president says that he has the right to launch military strikes on countries that have not attacked us first and continue to kill innocent men, women and children, if the president says that this is all because we are the shining beacon of hope and moral leader of the world, and if the president is a Democrat and black to boot, then by god, who am I to question the president?
I mean, what do I have instead?
Logic. Reason. Law. Evidence. Facts. Truth. Fairness. Justice. Morality.