Sunday, June 07, 2009

The Soft Center

While I have to grudgingly admit that this editorial in the Los Angeles Times is better written than most of the "center left" editorial board's efforts, it still misses the mark because it is based on a faulty assumption: that the rights to due process and habeas corpus are tenable only during peace and prosperity. The subject, of course, is the proposed "preventive detention" being considered by President Obama. passage in Obama's speech provoked dismay among civil libertarians. After delineating how the administration would treat four categories of detainees -- those accused of violating U.S. law, those charged with war crimes, those ordered released by the courts and those who can be repatriated -- the president identified a fifth: those "who cannot be prosecuted yet who pose a clear danger to the American people."

Those suspected terrorists would be held without trial. "I am not going to release individuals who endanger the American people," Obama said. A final judgment on his plan must await further details. But we accept -- uneasily -- the basic principle. If Obama is willing to wrestle with what he calls "the toughest single issue that we will face," so must those of us who consider the same question.

Preventive detention -- holding someone primarily because of what he might do in the future -- is an exception in the U.S. judicial system. Under a federal law upheld by the Supreme Court, some criminal defendants can be detained before trial, but in some cases Obama is willing to dispense with a trial. He says he is determined to exercise that authority rarely and to subject himself and future presidents to oversight by other branches of government. Those are gratifying promises, but they also serve to remind that detention without trial, although commonplace in wartime, challenges basic assumptions of U.S. justice when practiced over an indefinite period and an undefinable battlefield.
[Emphasis added]

The reason that fifth category of detainees cannot be tried, and therefore won't be, is that the evidence against those men is so badly tainted by how it was obtained that it would not be accepted in any court of law, even the heavily rigged military commission system. Further, proceeding to trial in such cases would shine too bright a klieg light on just what the prior administration and the various agencies in the Executive Branch did in their prosecution of the Global War On Terror. Apparently President Obama is just as afraid of the fall-out from that disclosure as former Vice-President Dick Cheney is.

Imposing a new system to provide oversight over such a process, as the editorial suggests, doesn't change the fact that preventive detention is against the most basic elements of our justice system. The editorial recommends a new court, modeled after the FISA court (which, for the most part, simply rubber stamps whatever the Justice Department puts in front of it), to monitor the selection and detention of those we can't try because we screwed up so badly to begin with. That's a cop-out, one worthy of the Soviet era show trials and gulags.

If due process and habeas corpus have any meaning, they must apply all the time, not just when it's convenient to the government. If this means that guilty and dangerous people are set free, then so be it. We will have to deal with them again. That's the price of a democracy which believes rights are more important than even governmental power.

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