President Obama Talks Detainees, Supports Indefinite Detention for Some Detainees

By Lindsey Ellerson

May 21, 2009 5:57pm

In his speech about national security today, President Obama said that not only do the ideals codified in the US Constitution not complicate the task of keeping the US safe, they are among the mightiest weapons in the American arsenal.

But he made at least one announcement that human rights groups say is completely at odds with the Constitution.

"We must never, ever turn our back on (the Constitution’s) enduring principles for expedience’s sake," the President said. "I make this claim not simply as a matter of idealism. We uphold our most cherished values not only because doing so is right but because it strengthens our country and it keeps us safe."

Gitmo, interrogation techniques such as water boarding — these made us less safe, the President said. He spent much of the 50-minute address discussing his plans for the detainees.

"As our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult.  These are issues that are fodder for 30-second commercials.  You can almost picture the direct mail pieces that emerge from many who vote on this issue designed to frighten the population.  I get it.  But if we continue it make decisions within a climate of fear, we will make more mistakes.  And if we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future."

He didn’t outline a specific plan, but he allowed that detainees could be held in US prisons — despite concerns expressed about that just yesterday by FBI Director Robert Mueller, who said his concerns about bringing detainees to US prisons included that "there is a potential for radicalization in a number of ways, whether it be for gang activity, for terrorist groups, for other extremists."

But apparently over-ruling his FBI director, President Obama today said that "where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders; namely, highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact.  Nobody has ever escaped from one of our federal super-max prisons which hold hundreds of convicted terrorists."

Detainees, he said, fall into five distinct categories.  Those include those guilty of US criminal law who could be tried in US federal courts, those "who violate the laws of war and are, therefore, best tried through military commissions," 21 detainees ordered released by the courts, 50 detainees that his administration has judged suitable for transfer to other countries for "detention and rehabilitation."

Lastly, describing the "toughest single issue that we will face," the president described those who face indefinite detention, "people who cannot be prosecuted for past crimes, in some cases, because evidence may be tainted, but who, nonetheless, pose a threat to the security of the United States."

These might be individuals who have "received extensive explosives training at Al Qaeda training camps or commanded Taliban troops in battle or expressed their allegiance to Osama bin Laden or otherwise made it clear that they want to kill Americans."

But perhaps the evidence against them is tainted because of use of brutal interrogation techniques.

The president said his "goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred."

The rules can’t "be based simply on what I or the executive branch decide alone. And that’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law.  We must have clear, defensible, and lawful standards for those who fall into this category.  We must be 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. 

It will be, he said, "within a system that involves judicial and congressional oversight."

Kenneth Roth, executive director of Human Rights Watch hammered the decision, saying "allowing detention without trial creates a dangerous loophole in our justice system that mimics the Bush administration’s abusive approach to fighting terrorism.”

The Center for Constitutional Rights President Michael Ratner said that President Obama "wrapped himself in the Constitution and then proceeded to violate it by announcing he would send people before irredeemably flawed military commissions and seek to create a preventive detention scheme that only serves to move Guantanamo to a new location and give it a new name.”

Managing Attorney for CCR’s Guantanamo project Shayana Kadidal added that "preventive detention goes against every principle our nation was founded on. We have courts and laws in place that we respect and rely on because we have been a nation of laws for hundreds of years; we should not simply discard them when they are inconvenient. The new president is looking a lot like the old.”

Many issues were discussed in the speech, including on the tug-of-war between transparency and national security, the brutal interrogation techniques the US has used which the International Committee of the Red Cross has deemed "torture," and other issues.

President Obama cast himself as of the reasonable center. "There’s a tendency in Washington to spend our time pointing fingers at one another.  And it’s no secret that our media culture feeds the impulse that leads to a good fight and good copy."

The president said that could be seen in "how the recent debate has obscured the truth….On the one side of the spectrum, there those who make little allowance for the unique challenges posed by terrorism and would almost never put national security over transparency.  And on the other end of the spectrum, there are those who embrace a view that can be summarized in two words — anything goes.  Their arguments suggest that the ends of fighting terrorism can be used to justify any means and that the president should have blanket authority to do whatever he wants provided it is a president with whom they agree."

Both sides, the president said, "may be sincere in their views, but neither side is right.  The American people are not absolutist.  They don’t elect U.S. to impose a rigid ideology on our problems.  They know that we need not sacrifice our security for our values nor sacrifice our values for our security so long as we approach difficult questions with honesty and care and a dose of common sense. That, after all, is the unique genius of America."

Karen Travers, Jon Karl and I have more on this debate, and what Vice President Cheney had to say in response today, HERE.

- jpt

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