Sunday, September 27, 2009
THE OBAMA administration announced last week that it did not need and would not seek new legislation to govern indefinite detention of some terrorism suspects at the U.S. Naval Base in Guantanamo Bay, Cuba. In so doing, the administration has chosen the politically expedient and intellectually dishonest route.
Like President George W. Bush, President Obama now asserts that the 2001 Authorization for the Use of Military Force gives him the right to hold some terrorism suspects indefinitely without trial. At Guantanamo, this is expected to affect 50 or so prisoners who, the administration has determined, can be tried neither in federal court nor before a military commission but are too dangerous to release.
The White House and its allies knowingly engage in a distortion. The question isn't whether the president may indefinitely hold some detainees -- the courts have ruled that he can under certain circumstances -- but what process should be available to those subject to such detention. This is the debate that Mr. Obama now lacks the courage to engage.
Administration officials and their defenders note that, as a result of a 2008 Supreme Court decision, all Guantanamo detainees get the benefit of judicial review. As proof of the effectiveness of this process, officials point out that they have lost 30 of the 38 habeas corpus cases adjudicated thus far. Without question, judicial review is infinitely better than the deeply flawed tribunals that served as rubber stamps for the administration's detention decisions. But because there are no legislatively mandated legal standards in place, judges are essentially making up the rules as they go along. This has often led to conflicting rulings on a broad range of issues and forced judges to step into the role typically set aside -- and jealously guarded -- by elected policymakers.
Passing new legislation would have been difficult, and the president has other policy matters that command his attention. But rather than tackling hard questions as he pledged to do during his campaign, Mr. Obama in this instance has ducked them.
If the administration's abdication is irresponsible, the reaction of the civil liberties community has been breathtakingly hypocritical. The American Civil Liberties Union has consistently opposed any indefinite detention regime and pushed for detainees to be charged in federal or military courts or released. So we wouldn't expect them to join us in criticizing Mr. Obama for failing to seek a new legal regime. But it is odd that the same policy which, when pursued by the Bush administration, constituted "thumbing its nose at the Constitution" and putting a "stain on America's name at home and abroad" now elicits nothing but a few measured tsk-tsks.