To build on Daphne’s point, how can Obama reconcile these two claims?

The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable – a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass.


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.

Here the Bushies really do have a case that the Obama administration is approaching them with intellectual dishonesty. The rap on the military commissions for years from civil libertarians was that rather than use the system of court martials — with established procedures for the disputation of justice — the Bush administration was creating an entirely new apparatus with dubious process requirements, evidently designed to engineer a conviction. Here Obama is talking about a system outside the military commissions and outside the justice system that will hold people indefinitely (or "prolongued" detention, in Obama’s euphemism), that he’ll design… from scratch. The evident difference is that this time, Obama will consult with a Democratic-controlled congress so cowered by demagoguery that it’ll shut down funding for closing Guantanamo. Change we can believe in.

In the United Kingdom a few years ago, there was a prolonged and vigorous debate about the appropriate limits for holding terrorists in preventive detention. Tony Blair’s government wanted a 90-day preventive detention period. Parliament roundly rejected it, but pushed the limit to 28 days in detention before a detainee had to be either charged or released. According to this Guardian piece, that’s the longest of any comperable democracy.

I don’t know if that’s what Obama has in mind here. It doesn’t sound like it. But this is also a major new initiative, with little explanation brought to bear about it. How can the courts, which have rejected indefinite detention for years, possibly bless it in this case? Here’s Human Rights Watch’s Ken Roth, in a prepared statement:

“President Obama is absolutely right to emphasize that ignoring our values undermines rather than enhances America’s security,” said Kenneth Roth, executive director of Human Rights Watch. “But allowing detention without trial creates a dangerous loophole in our justice system that mimics the Bush administration’s abusive approach to fighting terrorism.”

It’s enough to make you sympathize with Bush’s maligned lawyers. A little.

Crossposted to The Streak.

Spencer Ackerman

Spencer Ackerman