After Barack Obama wrapped up his big security and civil liberties speech last week, Sen. Russell Feingold (D-WI) issued a strong statement of support for the President in which he drew a stark contrast between the new administration and the previous one.
But Feingold was either holding fire, or the words he’d just heard hadn’t settled in immediately. Because by the end of the week, a reservation had emerged. In a gentle, but resolute, letter to Obama dated Friday, May 22, Feingold says a key aspect of Obama’s outlined detention policy is likely unconstitutional.
My primary concern…relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues….
I intend to hold a hearing in the Constitution Subcommittee of the Senate Judiciary Committee in June and ask that you make a top official or officials from the Department of Justice available to testify. I recognize that your plans are not yet fully formed, but it is important to begin this discussion immediately, before you reach a final decision. I will be sending formal invitations in the coming weeks and look forward to hearing the testimony of your administration.
Obama now seeks, as Feingold describes it, a statutory basis for indefinite preventive detention, but as Glenn Greenwald reminds us, his own counsel, Greg Craig, said “It’s possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law,” just three months ago.
Feingold is a member of the Judiciary, Foreign Relations, and Intelligence committees, which gives him a unique perspective on issues at the nexis of civil liberties and national security. He was also an Obama supporter during the Democratic primary, which makes this emblematic of the growing rift between the President and civil libertarians. Let’s see how Obama responds.
