Loss Of Honor
The only good news out of this Marc Ambinder post is that the White House reads a lot of Glenn Greenwald. That's of course fine, but the main point here is that the White House will, at some point, endorse and implement a policy of indefinite detention. We don't know how many people will be held under this policy, but basically the idea here is to allow the President to determine, at essentially his discretion, although there may be certain safeguards, that a prisoner cannot be either charged with a crime or released from prison, and must be kept in a holding cell "until the terrorists disappear", as Newt Gingrich put it today. This prisoner will have not been proven to have committed a crime, but will simply be thought likely to commit crimes against the United States in the future, based not on actual proof (otherwise they could be charged) but the supposition of a few in the executive branch. Greenwald lays this all out here.
This really and truly makes me sick to my stomach. I recognize that the Bush Administration picked up random people off a battlefield and made little or no effort to corroborate the hearsay that brought them into custody in the first place. What evidence exists probably has been gained through coercion or torture. And so American law, or even the diminished American law in the military commissions process, cannot handle such evidence. That's the theory put forward by the White House, anyway. And yet plenty of terrorism suspects, in cases with similar challenges, have been tried and convicted in American courts, not only in recent history but for hundreds of years.
This is an unprecedented expansion of the power of the executive to detain enemies he designates essentially forever. It's also completely unjustified in a country that pretends to follow a Constitution based on the preservation of liberty.
There's more here and here, and I don't think I could add much. I'm just completely disgusted by the prospect of indefinite preventive detention.
At least we have some American lawmakers left who understand the magnitude of this decision.
My primary concern, however, 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 [...]
I appreciate your efforts to reach out to Congress on this important issue. In that spirit, 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.
Sadly, Feingold appears to be alone in this opinion. But one Senator can do a lot, especially with help from the outside. It's absolutely crucial that we provide him all the muscle he needs to push the Administration back on this horrific potential decision.