President Obama’s speech touched on a number of significant and controversial national security policies–but perhaps the two most important were his proposed plan for dealing with Guantanamo detainees and his outline for reforming the State Secrets privilege, which may well become an issue when some of those detainees are tried in U.S. courts.
Civil libertarians and human rights activists won’t necessarily be pleased. Shayana Kadidal is the senior managing attorney of the Guantanamo project at the Center for Constitutional Rights. He says the administration’s plan to maintain a system of military commissions is deeply troubling.
Obama said, “detainees who violate the laws of war and are best tried through Military Commissions,” perhaps implying that the detainees in question were arrested on a genuine battlefield. Kadidal has his doubts. “I’m suspicious of the idea that he’s going to use it so narrowly,” he says. Many detainees were arrested not on a battlefield, but in their homes, and along the Afghanistan-Pakistan border, and yet they may find themselves before a military commission anyhow.
More troubling, according to Kadidal, was Obama’s embrace of preventive detention. “Finally,” Obama said, “there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.”
You can read the rest of that portion of Obama’s speech below.
Kadidal says that, in reality, there should be no such detainees–even detainees who have been tortured can be tried. “Traditionally our system has enver allowed the executive to detain somebody indefinitely.”
As noted in this post, Obama promised to reform his administration’s use of the State Secrets privilege. That, too, Kadidal said, is incomplete. “What’s missing there is a judge. What’s missing is someone who isn’t from the President’s own political party or his own administration.”
These sorts of concerns may have been why, when CCR’s executive director Vincent Warren left yesterday’s meeting at the White House with Obama and other rights advocates, he had some harsh words. “The president was very open to hearing CCR’s concerns on a range of Guantanamo policy issues, but I came out of the meeting deeply disappointed in the direction the administration is taking and I don’t see meaningful differences between these detention policies and those erected by President Bush.”
I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees – not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
