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.

Share
Single Page

More from Scott Horton:

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

No Comment March 28, 2014, 12:32 pm

Scott Horton Debates John Rizzo on Democracy Now!

On CIA secrecy, torture, and war-making powers

Get access to 164 years of
Harper’s for only $39.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

September 2014

Israel and Palestine

= Subscribers only.
Sign in here.
Subscribe here.

Washington Is Burning

= Subscribers only.
Sign in here.
Subscribe here.

On Free Will

= Subscribers only.
Sign in here.
Subscribe here.

They Were Awake

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
“There was torture by the previous regime and by the current Iraqi regime,” Dr. Amin said. “Torture by our Kurdish government, torture by Syrians, torture by the U.S.”
Visiting His Own Grave © Anadolu Agency/Getty Images
Article
On Free Will·

= Subscribers only.
Sign in here.
Subscribe here.

“Philosophers have labored for more than two thousand years to explain consciousness. Innocent of biology, however, they have for the most part gotten nowhere.”
Collage (detail) by Frederick Sommer
Criticism
The Soft-Kill Solution·

= Subscribers only.
Sign in here.
Subscribe here.

"Policymakers, recognizing the growing influence of civil disobedience and riots on the direction of the nation, had already begun turning to science for a response."
Illustration by Richard Mia
Article
Israel and Palestine·

= Subscribers only.
Sign in here.
Subscribe here.

“If Israel believes it needs to make a wall eight meters high between us and them, let them have it eighty meters high. Under one condition: It has to be on the international border.”
Photograph (detail) © Ali Jadallah / APA Images / ZUMA Wire
Article
Washington Is Burning·

= Subscribers only.
Sign in here.
Subscribe here.

“Fueled by the national-security spending and corporate lobbying that followed 9/11, the flood of (mostly white) newcomers to the city appears irreversible.”
Portrait © © De Agostini Picture Library / Bridgeman Images

Chance that a movie script copyrighted in the U.S. before 1925 was written by a woman:

1 in 2

Engineers funded by the United States military were working on electrical brain implants that will enable the creation of remote-controlled sharks.

Malaysian police were seeking fifteen people who appeared in an online video of the Malaysia-International Nude Sports Games 2014 Extravaganza, and Spanish police fined six Swiss tourists conducting an orgy in the back of a moving van for not wearing their seatbelts.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

In Praise of Idleness

By

I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today