Is Obama Proposing Preventive Detention?

Written by Robert Justin Lipkin on May 22nd, 2009

Preventive detention is incarcerating someone considered too dangerous to be permitted walk freely in Ameff.jpgrican society. Such an individual cannot be tried either because he or she has not committed a crime or because for one reason or other they cannot be convicted in a court of law. The reason for incarcerating such villains is to protect the innocent. This is clearly a noble and righteous goal that any responsible government should pursue. There’s only one problem. Indefinitely incarcerating someone whose not been convicted of a crime is anathema to American constitutionalism, fundamental American rights and values, and the rule of law.  It’s precisely the sort of practice that is arbitrary, tyrannical, and intolerable in any constitutional democracy worth the name. Moreover, it’s the sort of practice President Obama campaigned against. So can the president now be contemplating instituting a practice that was one of the central elements in the Bush administration’s lawless regime?  Consider Obama’s remarks from his May 21st speech:

I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

It’s difficult to see how any of these standards designed to create a system of prolonged (aka preventive) detention can conceivably comport with the rule of law. Perhaps the president has deluded himself into believing that it’s possible to construct “an appropriate legal regime” that enables us to transform preventive detention into a constitutionally permissible practice. But it can’t be done. No matter what “safeguards” are conscientiously put in place in such a legal regime when you put lipstick on a pig, to borrow from the campaign rhetoric used by both sides of the electoral contest, you still have a pig. All the clever contrivances designed to make preventive detention appear benign and consistent with the underlying reasons for launching the American republic in the first place will fail and with it the constitutionally grounded hope Obama had promised the American people.”Yes, we can” didn’t stand for “yes, we can violate the Constitution.” Did it?


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