Barack Obama: Constitutional scholar?

Recommended shift in detainee policy remains unjust and hypocritical

By Andrew Thornton

An Obama administration official (nameless as always) recently leaked to the press the recommendations of a high-level task force charged with reviewing the government’s “lawful options” to detain, try, or release terrorism suspects.

According to the official, the task force recommends that Obama separate the Guantánamo Bay detainees into three groups: those who can be tried in a federal court or a military commission, depending on the quality and admissibility of the evidence; those who should be transferred to another country for possible release; and those who should be imprisoned indefinitely, because while we think they pose a danger, we cannot provide evidence of a crime they have committed.

There are a few things worth noting about this third group of detainees, the indefinitely detained. The government argues that it may use perhaps the most extreme example of police power: the power to imprison people not for crimes they have committed, but for crimes they might commit in the future. Skepticism is warranted here for several reasons.

Most importantly, we should not grant our leaders this power when they criticize its use by other nations. Commenting on Iran’s arrest and imprisonment of three American hikers last July, Assistant Secretary of State Philip Crowley found it “outrageous that Iran refuses to abide by international standards and international agreements in terms of treatment of those who are in their care.” According to a fellow prisoner who has been recently released, the hikers appear to be “well-fed but suffering from the effects of prolonged imprisonment, including solitary confinement.”

The torture techniques used by Americans on detainees at Guantánamo and abroad are well-publicized, but it should still be emphasized that by American standards of detention and interrogation, solitary confinement is a modest technique. The hypocrisy displayed by our government and the double-standard to which we hold foreign countries is staggering, but even this hypocrisy is minor compared to the offense against our history.

In 1895, the Supreme Court held that “[t]he principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Axioms cannot be dismissed nonchalantly, and certainly not by way of loopholes such as the fact that our detainee is not American, or that he was captured “on the battlefield.” The due process clause of the Fifth Amendment does not distinguish between citizens and aliens. There seems to be no reason why an alien is somehow less deserving of protection from unjust, indefinite detention as an “enemy combatant” than an American is. The War on Terror is both indefinite geographically (the “battlefield” is anywhere) and indefinite temporally (“victory” means the permanent end of terrorism). These factors understandably lend themselves to abuse by the state.

Because lack of oversight makes abuse of preventative detention more likely, we should be concerned about the increased likelihood of false positives: that is, innocent bystanders who were captured in good faith by the military. Judicial oversight is absolutely necessary in these instances because from the government’s perspective, the innocent detainee proclaims his innocence just as much as the true terrorist. So, without being required to prove the legitimacy of detention, the government will treat bystanders and terrorists alike.

This is not mere speculation: The Obama official above who spoke to the press says that the task force will recommend that Obama release 110 of the 200 detainees at Guantánamo. The fact that most of the enemy combatants currently at Guantánamo have no reason to be there should be a sobering lesson about the abuse of indefinite detention without oversight.

The Bush administration previously asserted that every detainee at Guantánamo was an enemy combatant; the Obama administration currently says that although half of them were not terrorists and should be released, a quarter of them should be kept indefinitely. Why should we trust the intelligence of the current estimate any more than that of previous assertions? We must demand oversight of the government’s detention policy, and we must insist that the President defend his authority in each case by providing evidence of each detainee’s past crimes, not speculation about future ones.

— Andrew Thornton is a third-year in the College majoring in philosophy.