The Gaps Between U.S. Practice and President Obama's Rhetoric on Justice for Detainees

Saturday, May 23, 2009

PRESIDENT Obama sketched out a framework Thursday for the judicial component of the war on terrorism. This war -- of indefinite duration, against stateless organizations -- may call for new laws and institutions to handle, for example, terrorism suspects who cannot be tried but also cannot be released, he said. At the same time, the government should never hold anyone without judicial oversight and should not create new institutions without congressional buy-in.

This is, as we said yesterday, the right framework, but it left some crucial blank spots, and some areas where Obama policy so far is inconsistent with Obama doctrine. Here are a few:

-- Bagram. The United States is detaining foreign suspects in this Afghan prison without judicial oversight, and the administration has argued in court for the continuing right to do so. Prisoners of war swept up on the Afghan battlefield should be handled according to the Geneva Conventions and the laws of war, without interference from civilian courts. But some detainees in Bagram were seized in other countries and taken to that Afghan prison.

If it was wrong for the Bush administration to use Guantanamo Bay to evade judicial oversight in such cases, it can't be right for the Obama administration to use Bagram to the same end.

-- The Uighurs. Some people being held in Guantanamo Bay are not enemy combatants at all. The Bush administration -- after years of stonewalling -- acknowledged as much, and judges have ordered those detainees' release. These ethnic Uighur Chinese cannot go home to China, because they would be persecuted there, and no other country will take them, in part in fear of Chinese retaliation.

"The courts have spoken," Mr. Obama noted Thursday. "The United States is a nation of laws, and so we must abide by these rulings." Yet, faced with fearmongering by Rep. Frank R. Wolf (R-Va.), Sen. James Webb (D-Va.) and others, the administration seems paralyzed. When is Mr. Obama going to "abide by these rulings," and how? Eight years of unjustified incarceration is enough.

-- State secrets. Mr. Obama said his administration is planning to reform how it uses the "state secrets" privilege, which allows the government to challenge legal cases -- and sometimes get them thrown out of court without further consideration -- by asserting that trials in those cases would compromise national security. The privilege is needed, but governments may improperly use it to shield embarrassing or improper conduct. Mr. Obama promised to review more carefully when the privilege should be invoked, to invoke it more narrowly, and to report to Congress when it has been invoked and why.

The president's suggested reforms are useful. But voluntary, nonbinding reform by the executive branch isn't enough. The administration should actively support legislation, originally backed by Sen. Edward M. Kennedy (D-Mass.) and recently reintroduced by Sen. Patrick J. Leahy (D-Vt.), that would give judges more discretion in weighing executive secrecy claims and more leeway to exclude some evidence without tossing out entire cases. If Mr. Obama wants to "leave behind a legacy that outlasts my administration, my presidency," as he said Thursday, he should support binding reform that would do the same.

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