No Comment — May 28, 2010, 11:18 am

The Obama-Gates Department of Detentions

The White House has released its 52-page National Security Strategy (PDF). If you saw President Obama’s West Point speech, you already know the highlights of this policy, and it’s unsurprising if you have tracked foreign policy issues since the 2008 presidential campaign. The strategy can be distinguished from Bush-era policy by its heavy reliance on “soft power,” its recognition of the importance of building and maintaining alliances, and its geeky fascination with the national-security consequences of technology and innovation. The portions dealing with Pakistan and Afghanistan in particular reflect significant shifts in approach. But I join Spencer Ackerman in flagging one strange passage, under the heading of “Strengthen the Power of Our Example”:

The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted—but pose a danger to the American people—we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.

It’s hard to pass by the reference to detaining prisoners “who cannot be prosecuted.” If they’re involved with terrorists, the law provides the tools to arrest and charge them. This is about cases in which the United States has no meaningful evidence that would link the person held to a terrorist group. It looks like an endorsement of indefinitely detaining persons against whom the United States has no evidence of criminal conduct but whom it “suspects” may constitute a threat, usually based on the say-so of the intelligence service of some tyrannical but allied foreign power. That is the very definition of tyrannical conduct, yet here it is perversely touted as an example for emulation by others.

The Obama Administration has failed to provide a coherent justification for its detentions policy. This hasn’t stopped the District of Columbia Circuit—the amen corner for judicial acquiescence in the face of power grabs by the Executive—from giving it a green light to build and expand future Guantánamos, as is shown by the recent exercise in judicial pointlessness called Al Maqaleh v. Gates (PDF). Daphne Eviatar’s recent post discusses the consequences of this decision. In a word, it is a sweeping abdication of judicial responsibility in the face of the Executive’s proposal to build a global prison regime. It’s a death knell for the good old doctrine that the Constitution follows the flag.

The Obama Administration came to Washington promising to clean up the Bush-era detentions policy and make it conform to the clear requirements of law. Then it seems to have decided that the law wasn’t so convenient and that simply providing for unbridled executive authority à la Bush-Cheney wasn’t such a bad idea after all. In terms of Washington power politics, that decision seems to have taken the form of letting Robert Gates make the call on all these issues. The two figures in the Administration who took the most credible stance for implementing the Obama campaign-era promises on detentions policy—Greg Craig and Phil Carter—resigned within a few weeks of one another, offering no believable reasons for departing. Then press reports began to appear about secret prisons, operated by JSOC and DIA and applying rules different from those applied in the “normal” DOD prisons, including plenty of torture-lite techniques under Appendix M of the Army Field Manual (PDF).

This passage in the National Security Strategy makes clear that Barack Obama and his team have abandoned the promises they made to reform detentions policy in the 2008 campaign. Even the commitment to stop torture does not appear to have been fully implemented, given the unaccountable practices of JSOC and the DIA in Afghanistan. Barack Obama’s belief in the rule of law apparently takes the back seat to Barack Obama’s belief in his own ability to make the right call as executive. History will judge whether his confidence in his own abilities is warranted, but the distortion of the constitutional system presents a continuing challenge for those who believe in the older and more fundamental principle of accountability under the law.

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