Two recent articles examining the legal policy of the Obama White House have concluded that one man wields unprecedented power and influence: Lindsey Graham, a Republican senator from South Carolina who first gained national attention as one of the managers of the impeachment effort against President Bill Clinton. He went on to win a Senate seat and aligned himself tightly with Senator John McCain. An Air Force reserve JAG, Graham was a champion for lawyers inside the Defense Department as they battled Bush Administration efforts to introduce torture. But he was simultaneously a champion of other aspects of Bush-era war-on-terror policy, including the notion of military commissions to try prisoners held at Guantánamo. Both the New York Times and the New Yorker found that presidential chief of staff Rahm Emanuel relied heavily on Graham and his views, seeing in them a possible bridge to a bipartisan consensus on thorny legal policy issues. As Glenn Greenwald puts it, Lindsey Graham has become “all powerful.”
Politico’s Josh Gerstein now reports that Graham may be decisively influencing the White House on another critical issue: whether prisoners will be held indefinitely and without charge under a system that legal experts call preventive detention.
Civil liberties advocates and many who back Obama’s effort to close Guantanamo have opposed a preventive detention law as a departure from the tradition of prosecuting and punishing individuals for specific crimes. Some critics have also expressed worries that such a law would be hard to limit and could be extended well beyond Al Qaeda operatives.
Asked why the administration had become more open to a detention statute, Graham cited recent court rulings and comments by several federal judges who said the legal standards for detaining enemy prisoners are too vague. “The judges are just absolutely beside themselves,” Graham said. “I think that is something new the administration is listening to — the judiciary. … I do believe there is a willingness by some in the administration to sit down and reform our habeas statutes.”
Graham’s comment that judges are “absolutely beside themselves” is certainly overblown. Specifically, judges Thomas Hogan and Ricardo Urbina have suggested that Congress has not furnished the sort of guidance it could. Do judges come to differing applications of law to fact? Of course. That occurs every day in courts all around the country. It hardly indicates an imminent collapse of the legal system.
Political editorialist Ben Wittes has been campaigning for a regime of preventive detention for some time. His latest effort, co-authored with law professor Robert Chesney, is essentially a retread of an earlier screed against judicial involvement in the process published at the end of 2009. The Wittes view is that “chaos” has resulted from differing standards on what constitutes “coerced” testimony, and that the optimum solution would be to remove judges from the process, or at least restrict the damage they can do through new legislation.
What Wittes neglects to mention is that this “confusion” is largely the result of sustained efforts by the Bush Administration to blur the definition of “torture.” Their last approach was an attempt to define “torture” into oblivion but to give judges broad discretion to ascertain whether in individual cases coercion was so strong as to make the testimony untrustworthy. In other words, the Bush Administration sought to avoid a bright line approach and instead advocated one in which each decision would be specific to its own facts. Does that make for varying results? Indeed, that was the very purpose of the approach adopted. Thus, the complaint that Wittes and Chesney level, effectively that judges are having a hard time applying the law, borders on the ludicrous.
These points are essential to the program of long-term detention without charge that Wittes has made the focus of his recent career as a think-tank expert. Confessions extorted from prisoners under duress, and often enough under torture, are among the few tools available—in the absence of any serious evidence—to justify continued detentions. So far, their efforts have been staggeringly ineffective, with thirty-two decisions against the government in habeas cases, and only nine in the government’s favor. Those outcomes, mind you, are in the government’s handpicked forum—the District Court for the District of Columbia—before a pack of very conservative, Republican-appointed judges. Evidently this is still not quite stacked enough to suit some, including Wittes.
The importance of this issue cannot be overstated. At the core of the American Constitution and legal system lies what Blackstone called “the principle of freedom,” namely that the state does not have the power to deprive a person of his liberty unless he is charged and swiftly brought to trial. Open-ended preventive detention subverts this very principle, and indeed our Constitution and notion of the Rule of Law.
So let’s be clear about the context: Rahm Emanuel believes that the principle of freedom should be surrendered, because otherwise a Republican senator from South Carolina will be angry and the President’s Guantánamo plans might be blocked. A profound thinker, that Rahm Emanuel. It may be that Emanuel and Graham share a serious core agenda: the construction of an ever more powerful executive, wielding broad discretion that cannot be checked by courts and laws.
