Preserve, Protect and Defend

I've argued, and others have agreed, that the soon-to-be-in-charge left will have a hard time keeping its vow to close the Guantánamo detention facility. (As I've shown, Camp X-ray is compliant with international treaties and U.S. law.)

The transformation (rationalization?) has begun: Georgetown U. law prof David Cole--a long-time Bush Administration critic--has started to shift, based on his piece in the current Boston Review:

[C]losing Guantánamo will raise almost as many problems as it solves. Where, for example, will the new administration put the 250 or so men still detained there? No American city is eager to have accused al Qaeda terrorists in its backyard. And outsourcing the problem is not an option. Most of the detainees’ native countries will not take them back; cannot assure us that the men won’t return to battle; or may torture the detainees, thereby precluding us from repatriating them.

The difficult question of relocation, however, pales in comparison to the long-term problem of what to do with the remaining detainees. The Bush administration claims that about eighty could be criminally tried. If we cannot try the remaining 170, must we release them? . . .

In my view, Obama should adopt neither of these alternatives. The try-or-release approach leaves us without sufficient protection in modern-day military conflicts. At the same time, authorizing preventive detention of suspected terrorists, as Katyal and Goldsmith advocate, would be both unconstitutional and unwise. There is no justification for bypassing the criminal justice system simply because an individual is suspected of terrorism rather than drug dealing, rape, or murder. If we were to create such an exception for terrorists, what would stop its extension to other serious crimes?

There is, however, a third alternative--one that allows the United States sufficient authority to protect itself from al Qaeda fighters while avoiding the creation of an exception that threatens to swallow the rule of the criminal process. Congress should follow the example of traditional wars and give the administration the option to detain--without criminal trial--those engaged in hostilities with us for the duration of the military conflict with al Qaeda and the Taliban. Detainees should be afforded punctilious procedure to ensure that we are detaining only those who fought for al Qaeda or the Taliban and pose an ongoing threat.

Replying in the same publication, U. Chicago law prof Eric Posner correctly says Cole hasn't moved far enough:

The problem to which the Bush administration and Congress responded with laws like the Patriot Act was not so much the threat of al Qaeda itself, but the vulnerability of the United States to destructive weapons in the hands of anyone with hostile intent.

Cole’s proposal to expand powers of preventive detention against members of al Qaeda, while reasonable within the narrow scope of his agenda, fails to come to terms with the overall problem that 9/11 demands we recognize. What is to be done when the executive branch learns of an organization or even individual who it suspects has obtained, or is likely to obtain, weapons of mass destruction, but can’t convict of a crime? The executive can’t very well ask Congress to declare war against every new shadowy, but potentially harmless, institution or individual who briefly emerges into the light. And yet the implication of Cole’s approach is exactly that: no preventive detention regime to address a new threat until congressional authorization has been obtained.

I suspect that in the next years, even under a more liberal administration, Bush-era restrictions on civil liberties will be retained, at least to some extent. And they will be extended if new attacks occur. It is only a matter of time before a general preventive detention system, not limited to members of al Qaeda and associated groups, will be added to the criminal justice repertoire.

Other reactions to Cole are here.

National security: it's not just a campaign promise anymore. See U.S. Constitution, Art. II, Sec. 1, cl. 8.

(via Volokh Conspiracy)