The Self-Entangling Giant

White House officials are trying to prepare the ground for the fact that they're not going to close Guantanamo on time. I believe Obama boasted in his UN address that he announced the closure of Gitmo.

Senior administration officials told The Associated Press that difficulties in completing the lengthy review of detainee files and resolving thorny legal and logistical questions mean the president's self-imposed January deadline may slip. Obama remains as committed to closing the facility as he was when, as one of his first acts in office, he pledged to shut it down, said the officials, who spoke on condition of anonymity in order to more freely discuss the sensitive issue. They said the White House still was hoping to meet the deadline through a stepped-up effort.

The prison in Cuba was created by former President George W. Bush after the Sept. 11, 2001, terrorist attacks as a landing spot for suspected al-Qaida, Taliban and foreign fighters captured in Afghanistan and elsewhere. But it has since become a lightning rod of anti-U.S. criticism around the globe. There are approximately 225 detainees still being held at the prison.

People may give a little slack if we're talking months, but of course we won't see the closure of American prisons holding suspects indefinitely. Bagram is still open, and the White House is trying to run some B.S. military commission-like trial to give the illusion habeas rights, which fall far short of that goal. They haven't set the rules for military trials at Guantanamo, or found a location for the prisoners they want to keep, or host countries that will take the ones who can be let go. And they want to use Bush-era theories about the authorization of military force against Al Qaeda giving them authority to use preventive detention and hold suspects without charges. This may be a small victory because they are not setting preventive detention into statutory authority through Congress, but it remains the case that this Administration still wants to hold suspects without charges, is doing so at Bagram and is dragging their feet on closing Guantanamo.

This leads to a more general point: when it comes to uprooting ("changing") the Bush/Cheney approach to Terrorism and civil liberties -- the issue which generated as much opposition to the last presidency as anything else -- the Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do. They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers. With great fanfare, they announced the closing of CIA black sites -- at a time when none was operating. They trumpeted the President's order that no interrogation tactics outside of the Army Field Manual could be used -- at a time when approval for such tactics had been withdrawn. They repudiated the most extreme elements of the Bush/Addington/Yoo "inherent power" theories -- while maintaining alternative justifications to enable the same exact policies to proceed exactly as is. They flamboyantly touted the closing of Guantanamo -- while aggressively defending the right to abduct people from around the world and then imprison them with no due process at Bagram. Their "changes" exist solely in theory -- which isn't to say that they are all irrelevant, but it is to say that they change nothing in practice: i.e., in reality.

Greenwald references this Gary Wills article in forwarding the argument that a country in a near-permanent state of war will always assert these kind of expansive powers for reasons of national security :

That is just one of the hundreds of holdings in the empire created by the National Security State. A president is greatly pressured to keep all the empire's secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast, shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the bomb, a modern president cannot not use the huge powers at his disposal. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.

The White House has replaced the leadership dealing with Guantanamo closure, and maybe they'll regroup and get the place closed in short order. But the permanent national security society, and the political momentum behind it, will resist real transformation in this area.

Disappointment On Civil Liberties

I think I was too soon in my tempered praise for Obama's decision on Bagram Air Force Base. Yes, prisoners there will have an opportunity to challenge their detention, but basically using the same process found unconstitutional when tried at Guantanamo. This still denies prisoners basic habeas rights in a court of law and allows the government to abduct anyone and send them to Bagram indefinitely, where they cannot challenge their detention properly. In fact, since the action was in response to a court order to allow non-Afghan prisoners a right to plead their case, the detainees will probably have no opportunity to act on this until years of litigation over whether this system can pass Constitutional muster. As one of the representatives for Gitmo detainees said yesterday, "It’s another stall. And one I would have expected from the Bush administration but not the Obama administration."

Boy, how many times have we heard that? In addition to turning Bagram into Guantanamo East and seemingly stocking prisoners there outside any review process, this Administration wants to create a legal process for preventive detention, enabling them to hold anyone without charges indefinitely, which Russ Feingold has called "a hallmark of abusive systems that we have historically criticized around the world." Obama's CIA continue to use the state secrets privilege to get out of a host of different accountability measures. And just yesterday, the Administration announced that they support renewing all sections of the Patriot Act.

The Obama administration has for the first time set out its views on the controversial USA Patriot Act, telling lawmakers this week that legal approval of government surveillance methods scheduled to expire in December should be renewed, but leaving room to tweak the law to protect Americans' privacy.

In a letter from Justice Department officials to key members of the Senate Judiciary Committee, the administration recommended that Congress move swiftly with legislation that would protect the government's ability to collect a variety of business and credit card records and to monitor terrorism suspects with roving wiretaps.

But Assistant Attorney General Ronald Weich also told Democrats that the administration is "willing to consider" additional privacy safeguards advocated by lawmakers, so long as the provisions do not "undermine the effectiveness of these important authorities."

The three provisions set to expire Dec. 31 allow investigators to monitor through roving wiretaps suspects who may be trying to escape detection by switching cellphone numbers, obtain business records of national security targets, and track "lone wolves" who may be acting alone on behalf of foreign powers or terrorist groups. The government has not employed the lone wolf provision, but department officials want to ensure they can do so in the future.

Well, that's nice, they're "willing to consider" privacy safeguards. It's not like we've had multiple reports of the FBI violating privacy through unauthorized national security letters or wiretaps that capture the information of individual Americans. With Russ Feingold and Dick Durbin working on a bill including these safeguards, some advocacy groups are optimistic, but given the Administration record on civil liberties to this point, I'm not sure why.

The President, a Constitutional scholar, is doing what executives in the executive branch typically do - aggrandize their power in the manner of the previous occupant of the office. The courts and Congress need to do what's necessary to stop them. But when the previous President so flagrantly abused the privacy protections and civil rights of American citizens and violated the country's laws, you'd think that the new man on campus would trim his sails a little bit.

Justice And Accountability By Inches

After 9/11, among the many deprivations of civil liberties and violations of federal and international law, Attorney General of the United States John Ashcroft gave the FBI the power to detain and interrogate thousands of Muslim-Americans across the country as "material witnesses" without charges. We know little about the number of people detained, the nature of the interrogations and the extent of the abuse heaped on the prisoners. We do know, based on Ashcroft's own words, that this policy sought to pre-emptively detain Muslim-Americans suspected by the Bush Administration of future acts of terrorism or extremism, despite not having any evidence required to charge the suspects.

Yesterday, a federal appeals court panel, composed of two Bush 43 appointees and a Reagan appointee, allowed a case to go forward that would hold John Ashcroft liable for violating one detainee's Constitutional rights under the 4th and 5th Amendments.

The court found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft for allegedly violating his constitutional rights. Abdullah al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit against Ashcroft and other officials in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks in 2003.

He said the investigation and detention not only caused him to lose a scholarship to study in Saudi Arabia, but cost him employment opportunities and caused his marriage to fall apart.

He argued that his detention exemplified an illegal government policy created by Ashcroft to arrest and detain people -- particularly Muslim men and those of Arab decent -- as material witnesses if the government suspected them of a crime but had no evidence to charge them [...]

''Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world,'' Judge Milan D. Smith Jr. wrote. ''We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.''

You can read the 9th Circuit's opinion in the case, including the circumstances Abdullah al-Kidd found himself in back in 2003. Al-Kidd, a Muslim convert of African-American descent, planned a flight to Saudi Arabia to study on a law scholarship at a Saudi university. He was arrested at the airport under the material witness statute on a separate case, held for 16 days in detention centers in Virginia and Idaho, strip-searched on multiple occasions, and after several interrogations, eventually released. He was never called as a witness in the case on which he was arrested (a case where the individual was acquitted), nor has he been charged with any crime or called in on any other proceeding.

The ruling basically states that Ashcroft is liable for an unconstitutional policy that purposely violated the rights of al-Kidd, and by association thousands of other potential defendants, using the material witness statute just to hold anyone he fancied. If it survives appeal, the government will have to release all documents pertaining to the material witness policy under Ashcroft.

Glennzilla says the impact of this is to show the illegality and immorality of a preventive detention policy - one which this Administration might assert later this year. I agree with that, but I think its impact is slightly different. What it shows is that there are so many people whose lives have been touched - in some cases irreparably - by the terror practices of the Bush regime that there will be no limit to the actions to seek justice and accountability. The suits will continue, one by one, and the rulings made, over and over, and out of the thousands, at least one will find a crack. A legal hole in the framework of official secrecy and efforts by the executive branch to shut down the judiciary. And that hole will beget more holes. The groups and defendants striving for accountability will not stop because they rest on the principle of equal justice under the law, and to give up would signal the effective end of the American system.

Under the Bush Administration, officials in the highest levels of government committed heinous crimes, crimes to which they are only beginning to be held to account. The effort by the Obama Administration to indemnify those officials for those crimes just won't work. Little by little, good men and women with the law on their side will probe and appeal and file suit, and we will see justice. It's only a matter of time.

The Malaysia Option

We are several months away from the Obama Administration making a decision on whether to put into motion a practice of preventive detention, so that the government can hold terror suspects captured around the world without charges and despite a paucity of evidence. Despite federal judges finding that the government lacks evidence to imprison suspects in 28 out of 33 habeas corpus hearings on Guantanamo detainees so far, the White House, at least in early reports, wants to set up a system to keep those who they cannot charge but do not want to release. The courts have invalidated the 2006 provision in the Military Commissions Act that would have eliminated the right of habeas corpus for all Guantanamo detainees and so-called "enemy combatants," but the Administration is pondering a system to effectively deny that right anyway and detain suspects at their discretion for indefinite periods.

It's instructive to see examples of a system where a chief executive can lock up whoever they choose indefinitely without charges. Yesterday, citizens in Malaysia struck out in protest:

Police broke up Malaysia's biggest protest in nearly two years Saturday, firing tear gas and chemical-laced water at thousands of opposition supporters demanding an end to a law that allows detention without trial.

Witnesses estimated that as many as 20,000 people took to the streets of Kuala Lumpur, defying government warnings not to participate in the rally against the Internal Security Act, which allows the indefinite imprisonment of people regarded as security threats.

The crackdown could erode support for Prime Minister Najib Razak, who took office in April and has been battling efforts by opposition parties to portray him as a leader who disregards public opinion on issues such as human rights and freedom of expression.

Kuala Lumpur police Chief Mohammed Sabtu Osman said authorities arrested 438 people after about six hours of mayhem in which riot police wielding batons chased protesters down the city's streets, scuffled with them and dragged many into detention trucks.

Malaysia is a constitutional monarchy with a bicameral legislature and a British-style Parliamentary system. The Prime Minister is elected by the people. And yet the Internal Security Act, or ISA, has been around since the 1960s, designed to detain "security threats," no doubt including those detained yesterday after the protests. Incoming Prime Ministers traditionally let several ISA prisoners go when they first assume office, only to capture others soon after. Further, Malaysia has a troubled recent history when it comes to detention:

Human rights lawyers fought off an application by the Malaysian police to remand two youths aged 16 and 13 for allegedly taking part in an August 1 mammoth rally to protest a draconian law – the Internal Security Act – that allows for indefinite detention of civilians without trial.

“The two kids are free now. The application was denied but it was an eye-opener to see the grounds put forward by the police. They were so flimsy,” said Jonson Chong, who together with a team of other lawyers including N Surendran and S D Arunasalam challenged the bid to put the under-aged pair in jail [...]

But perhaps another key reason for the hysteria over the remand of the children was also because of the long string of custodial deaths. Through the years, hundreds of suspects and witnesses have died suspiciously while in the custody of federal agencies such as the police and the Malaysian Anti-Corruption Commission.

Barely two weeks ago, a 30-year Selangor state political officer Teoh Beng Hock fell to his death from the 14th floor office of the MACC after a marathon investigation. There is widespread belief that his interrogators contributed to his demise and an inquest is now taking place.

“Police ought to be trained in children’s rights. This is so basic. But what happened was that they were only concerned to carry out the bidding of their political masters without respecting the children’s rights. These two are clear cut cases of political retaliation because both parents are known activists,” said Jonson.

Another 16-year old Faizudin Hamzah was less fortunate. Arrested at 11.55pm on Friday night at the central bus station, he was remanded for four days. Police have still not given any reason. The magistrate granted an omnibus remand order without even seeing the boy, who was sleeping when he was detained.

So we have a country which engages in indefinite detention of those described as threats, though that has crept from threats of terrorism and security to "threats" of dissent. They have imprisoned even minors under this statute. And they have beaten, tortured and even murdered people in custody.

Absolutely none of this is in conflict with the recent past in America. The only thing different here is that Malaysia's indefinite detention law has proven durable and lasting, coming up on its 50th anniversary. Once an executive is handed such powers, one after another has sought not to repeal them but to implement them, even after initially freeing some prisoners. Prime Ministers of all political stripes have used the law. And the nature of power being what it is, that would surely be the outcome if Obama decided on a system of preventive detention here.

Last September, the US State Department actually had the nerve to criticize the Malaysian government for implementation of the Internal Security Act to silence dissent:

The United States summoned Friday Malaysia's top envoy in Washington to protest its crackdown on dissent at a time when the opposition was attempting to take over power in Kuala Lumpur [...]

"Peaceful expression of political opinions is a fundamental right and critical to a democracy," a State Department official told AFP.

"The United States believes that the Malaysian government should provide due process and treatment consistent with Malaysian law and international standards," said the official, speaking on condition of anonymity.

"We expect that democratic countries that purport to advocate free expression of political views will not curtail such freedom," the official said following the trio's arrest.

The Obama Administration should probably take a lesson in humility before making a similar statement. And they should look at how indefinite detention has endured in Malaysia and other countries throughout the world, with painful consequences, before trying to implement it here.

And Justice For None

Glenn Greenwald has the gory details about yet another civil liberties backtrack for the White House, introducing the new term of "presidential post-acquittal detention power." Basically, if the Administration puts a terror suspect on trial and they are actually found innocent, the President reserves the right to detain them anyway for an indefinite period.

All of this underscores what has clearly emerged as the core "principle" of Obama justice when it comes to accused Terrorists -- namely, "due process" is pure window dressing with only one goal: to ensure that anyone the President wants to keep imprisoned will remain in prison. They'll create various procedures to prettify the process, but the outcome is always the same -- ongoing detention for as long as the President dictates. This is how I described it when Obama first unveiled his proposal of preventive detention:

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

After yesterday, we have to add an even more extreme prong to this policy: if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we'll still just keep them in prison anyway by presidential decree. That added step renders my criticism of Obama's conception of "justice" even more applicable:

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals). Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

I get the feeling that if those left at Guantanamo wanted to engage in mass suicide right now, someone in the White House would give the go-ahead to mix the Kool-Aid for them. This is just a problem they don't want to solve.

And of course, the focus on Guantanamo, and the fate of the prisoners there, keeps everyone's eye off of those indefinitely detained at Bagram Air Force Base in Afghanistan, without charges, and in greater numbers at this point than in Cuba. Furthermore, what Obama's team has not answered is if they plan to continue these show trials and preventive detention tactics for those they capture, not just the artifacts of the Bush regime. That answer could come soon.

We have, through expansion of executive power, extreme Congressional deference and a failure to counteract the push in the popular culture, allowed the arguments of reactionaries - that any suspect in the so-called "war on terror" must be detained indefinitely until the end of combat in an endless, figurative war - to take hold in the public mind. When these issues made the public debate, when torture became the stuff of online poll topics, when they were allowed legitimacy, we inevitably and inescapably lost that debate. The genie has left the bottle, and while a popular President could put it back in, he has shown absolutely no willingness to expend an ounce of political capital to do so. And we will look back on decisions like this as part of a sad legacy, regardless of the rest of the tenure.

Happy Torture Of July

I have pulled back from writing about the torture debate of late because it's just too painful. There can be no question that this country used taxpayer-funded federal agencies like the CIA and the Department of Defense to enact cruel, degrading and illegal techniques on terrorism suspects as young as twelve, pushing them into false confessions and generally making it impossible to separate the guilty from the innocent, in a mad search for evidence, including confessions linking Iraq and Saddam Hussein with Al Qaeda and 9-11. These acts of torture, which we reversed engineered from the Chinese Communists (who also used them to extract false confessions) were far from benign or even ephemeral; indeed, at least 100 prisoners in custody died from torture, both at secret prisons abroad, in Iraq and in Afghanistan, where the very same base of operations for the torture of prisoners, Bagram, continues to house hundreds of suspects without charges. When civil liberties groups and ordinary Americans learned of these acts of torture, authorized and directed at the highest levels right out of the White House, those in power sought to destroy the evidence, and even to this day, the Administration that succeeded them has done everything in its power to cover up much of the worst abuses and ensure no accountability for these actions. To this day, some of the people directly involved in the torture regime continue to work in their positions under the Obama Administration.

Some would consider this a terrible subject to write about on the Fourth of July. I think it's the perfect time. I believe that the founding of the nation rings hollow when we can no longer say without laughing that here, the people rule, that no man is king and nobody is above the law, that we have a government of, by and for the people. The difficulties of passing legislation that moves us forward into the future were in many ways baked into the checks and balances of the system. Those processes can change. But the stain of torture, combined with the complete lack of accountability for it, must not get swept out with the old Administration like a bad policy. Indeed, the spectacle of watching the Democratic President essentially follow the Republican President in enshrining civil liberties abuses into law , gaining support on both sides, is deeply distasteful and distressing to me as an American.

I guess I'm supposed to be cheered by the fact that the President won't sign an executive order bringing the concept of preventive detention, the idea of indefinitely holding prisoners without charges, into this American experiment. And I should take solace that some in the Justice Department believe that detainees in our custody do have protections in the legal system against being charged using evidence gained through torture or coercion. But none of this is really good enough. Torture is a bright line that should separate civilized societies from the uncivilized. It is true that the courts and even some of the internal Justice Department mechanisms at the Office of Legal Counsel have resisted this headlong push into codifying some of the worst abuses of the Bush Administration. And yet those tactics and actions seen as wrong, as illegal, as the cause of hundreds if not thousands of deaths, have no sanction. And we live with this moral rot. And it's a rot which almost necessarily leads to other abuses, as we get swept up in almost a fever dream, where security trumps liberty and fear overpowers reason.

Donald Rumsfeld has finally said he's sorry. Sort of.

In an interview with biographer Bradley Graham, the former secretary of defense says he has regrets about the administration's controversial detainee policy.

The twist is that Rumsfeld doesn't regret the policy itself -- specifically the abandoning of the Geneva Conventions for detainees picked up in Afghanistan. Rather, he regrets how the policy was formulated.

Here's the relevant section from Graham's book:

With the passage of time, Rumsfeld has come to recognize that he made a mistake, although he sees the error as one of process, not basic judgment. He faults himself for taking too legalistic an approach initially, saying it would have been better if senior Pentagon officials responsible for policy and management matters had been brought in earlier to play more of a role and provide a broader perspective. As he explained in an interview in late 2008, policies were developing so fast in the weeks after the September 11 attacks that he did not follow his own normal procedures. "All of a sudden, it was just all happening, and the general counsel's office in the Pentagon had the lead," he said. "It never registered in my mind in this particular instance--it did in almost every other case--that these issues ought to be in a policy development or management posture. Looking back at it now, I have a feeling that was a mistake. In retrospect, it would have been better to take all of those issues and put them in the hands of policy or management."

Further, Rumsfeld conceded, more should have been done to engage Congress in drafting the new policies on detainees--something he said that White House officials had opposed. Although Congress did eventually get involved, he noted that this occurred "in duress" after the Supreme Court ruled in 2006 against the administration's original approach.

"All of a sudden, it was all just happening." Rumsfeld doesn't really take responsibility for the deaths of people in custody, but he recognizes the environment that leads to such mistakes and lapses, a groupthink that eventually consumes the policymakers. It makes a mockery of deliberative democracy to think this could ever happen.

It's not the most festive message on this day, but if we celebrate these United States on the day of its founding, then we must also strive for that union to live up to the founding principles. All men are created equal reads like a punchline in light of the past eight years and even these last several months. And there is no better time to ruminate on how we can be worthy of the sacrifices of those who started a revolution to bring self-government to this colonized collection of states.

Preventive Detention Floated

John Cole said to prepare for an anti-Obama shit fit based on this news, but isn't it a pro-civil liberties shit fit? A pro-habeas corpus shit fit? A pro-due process shit fit? A pro-hundreds of years of Western-style criminal justice shit fir?

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the military facility in Cuba, White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible. Several officials said there is concern in the White House that the administration may not be able to close the prison by the president's January deadline.

It's important to note that an unnamed White House official denies the existence of a draft order, and in the story spokesman Ben LaBolt does the same. But if you believe the general overview of the piece, we're about to see a little over 100 prisoners, with insufficient evidence to be tried but suspicions that they would "return to the battlefield," as it were, if released, will be held indefinitely in a prison, whether it's Guantanamo or not, until such time as they are fit to release, at the end of the so-called war on terror, I suppose.

The Administration is still working from this theory that the only problem with Guantanamo is its symbology and not its reality, that the indefinite detention of prisoners, their torture and abuse, etc., constituted the outrage of the world, not its location.

The other kind of astonishing thing with this idea is that the courts have ALREADY found it unconstitutional. Hamdan v. Rumsfeld pretty much put it to rest. In fact, the attorney for Salim Hamdan in that case was President Obama's own Deputy Solicitor General, Neal Katyal.

If this were sent out as a trial balloon to gauge reaction, hopefully the White House staff will take a click over to TPM:

But it doesn't sound like those groups are pysched about the news, exactly. Shane Kadidal of the Center for Constitutional Rights told TPMmuckraker via email:

Prolonged imprisonment without trial is exactly the Guantanamo system that the President promised to shut down. Whatever form it takes - from Congress or the President's pen - it is anathema to the basic principles of American law and the courts will find it unconstitutional.

Kadidal continued:

Another thing that's odd about this is the idea that this detention authority would somehow be more transient if it were authorized through executive order (which can be reversed at the stroke of the president's pen) rather than a statute (which could sit on the books indefinitely). If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent.

In fact, this executive abuse is being carried out to cover up the previous executive abuse, which doesn't excuse Obama for this illegal action, but just shows how untrammeled executive power can just snowball. Indeed, in at least one Guantanamo case, it can be argued that preventive detention will be employed to cover up the torture of one of the potential witnesses in the trial.

Glennzilla notes something even more horrific about this:

There has now emerged a very clear -- and very disturbing -- pattern whereby Obama is willing to use legal mechanisms and recognize the authority of other branches only if he's assured that he'll get the outcome he wants. If he can't get what he wants from those processes, he'll just assert Bush-like unilateral powers to bypass those processes and do what he wants anyway [...]

That, for instance, is the precise pattern that's driving his suppression of torture photos. Two federal courts ordered the President to release the photos under the 40-year-old Freedom of Information Act. Not wanting to abide by that decision, the White House (using Lindsey Graham and Joe Lieberman) tried to pressure Congress to enact new legislation vesting the administration with the power to override FOIA. When House progressives blocked that bill, the White House assured Lieberman and Graham that Obama would simply use an Executive Order to decree the photos "classified" (when they are plainly nothing of the sort) and thus block their release anyway.

People are starting to wake up to the evidence that the President has basically carried on a good deal of the same abuses of the Bush regime, and this attempt to engage in preventive detention is perhaps the worst example. The idea that the Administration cannot change certain prisoners because we cannot be assured ahead of time that they will win a conviction sets the standard of law completely on its head. As Bob Herbert notes:

Americans should recoil as one against the idea of preventive detention , imprisoning people indefinitely, for years and perhaps for life, without charge and without giving them an opportunity to demonstrate their innocence. And yet we’ve embraced it, asserting that there are people who are far too dangerous to even think about releasing but who cannot be put on trial because we have no real evidence that they have committed any crime, or because we’ve tortured them and therefore the evidence would not be admissible, or whatever. President Obama is O.K. with this (he calls it "prolonged detention"), but he wants to make sure it is carried out -- here comes the oxymoron -- fairly and nonabusively. Proof of guilt? In 21st-century America, there is no longer any need for such annoyances. Human rights? Ha-ha. That’s a good one.