Fordham Law


On indefinite detention of terror suspects, Obama’s as much to blame as Bush: He compromised and capitulated instead of sticking to principle

Karen Greenberg in The Daily News, December 01, 2011

Media Source

President wavered on Guantanamo

BY Karen J. Greenberg

This week, the detention policy hatched by the Bush administration reached its pinnacle: a full-fledged codification of the Pentagon as the primary detention authority for crimes related to terrorism.

By rejecting an amendment to eliminate controversial language in a defense spending bill, the Senate gave de facto approval to a provision allowing for the indefinite military detention of individuals accused of terrorism, be they U.S. or foreign citizens.

If this legislation is signed by the President, it will achieve everything that the Cassandras of the war on terror predicted: the removal of constitutional guarantees for U.S. citizens; the further emasculation of the criminal justice system; and the planting of both feet firmly in the camp of detention without due process.

What’s most appalling is just how predictable — and preventable — all this was.

From the start of his presidency, President Obama has known that the detention quagmire was one of his major challenges as President. The Bush administration had rounded up hundreds of the wrong folks, put them in detention in Guantanamo and, unable to try them due to lack of evidence, preferred to detain them rather than to let them go free, fearing that many would return to unstable countries that were hotbeds of terrorism.

The only choice Obama really had when he took office was not to compromise on this issue, to make clear that it was a matter of principle: Under American law, you cannot be held indefinitely without being formally charged with a crime.

Claim the moral high ground, then defend it.

He began this way when, on his second day in office, he promised to close Guantanamo within a year — in other words, to end the system of indefinite detention.

Had the President quickly and decisively followed through on the pledge, he could have done just that. He could have insisted on trials for those against whom there was evidence and release for the rest.

Then, within months, without waiting for a legislative process or even a full-fledged debate, he buckled — and, in May 2009, announced a compromise to the nation.

That May speech was full of careful wording and “on the one hand, on the other hand” type rhetoric. But there was one big headline: Obama would allow the concept of indefinite detention to continue into the future.

There is a straight line from that moment 21/2 years ago to the detainee provision in the National Defense Authorization Bill that is about to become law.

Obama has made his opposition to the bill known, threatening a veto if it passed with the current detention provision. He still doesn’t get it. He still is unwilling to stand on the moral ground of his early convictions.

In order to rally votes to his side, he has trotted out the heads of the FBI and other law enforcement agencies. They have argued that the policy will prevent domestic agencies from accessing key intelligence information. They have insisted another core problem with indefinite detention is the strain it will place on an overstretched military.

But what’s wrong with indefinite detention is not a matter of the logistics of national security or military resources. What’s wrong with indefinite detention is that it is an eradication of a fundamental right upon which American democracy has stood from its founding days — namely, the right not to be incarcerated without evidence, the right not to be summarily “disappeared” on the say-so of one person or agency, the right not to be denied justice.

If the President himself is not willing to embrace as sacred the right to due process for Americans, if he is not willing to risk everything to protect that fundamental constitutional guarantee, if he really believes you can compromise on this basic value, then why should we be surprised that the nation itself is floundering?

How hard would it be for the President of the United States to face the nation and tell it clearly, once and for all, and without any qualms: “It was absolutely wrong to consider making Guantanamo a permanent reality. And it is a further — and unacceptable — violation of the very premises of our democracy to expand the Guantanamo concept of indefinite detention to include Americans.”

Only when a President leads the nation with the reminder that America’s identity as a nation is not subject to compromise will the long-term wounds of 9/11 begin to recede.

Greenberg is director of the Center on National Security at Fordham Law School and is the author of “The Least Worst Place: Guantanamo’s First 100 Days.”