There are a lot of reactions to the two speeches yesterday. President Obama’s speech at the National Archives laid out his vision of our national security, and former Vice President Dick Cheney tried to justify the record of the Bush administration and take down the president in the process.
The reactions to the speeches are predictable depending on who you listen to; the right wing thought Mr. Cheney was just wonderful and President Obama hopelessly naive and “flowery,” while the left thought Mr. Cheney was his usual dictatorial self, with the expected wrinkles, especially from those who were both surprised and more than a little curious as to what President Obama meant when he put forth the idea of “preventive detention” for terror suspects. Hilzoy sums it up.
No. Wrong answer.
If we don’t have enough evidence to charge someone with a crime, we don’t have enough evidence to hold them. Period.
The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don’t have enough evidence, that’s a problem, but it’s also a problem with detaining them in the first place.
And then there are those who would strike a middle ground between the snarling and smug arrogance of the past administration and the toxic mess they left for the president who, because of the mistrust now ingrained in the fabric of our consciousness about what our government is capable of doing, has to make the dubious case that we should trust him with the open-termed power he holds as the Commander in Chief.
Frankly, I don’t like the idea of “preventive detention” any more than Hilzoy does, and I don’t buy it just because I hope that President Obama will be a more able steward of the rule of law than his predecessor. This isn’t a liberal or a conservative issue; it’s the basic foundation of our system of justice: you are innocent until you’re proven guilty, not until we can find enough evidence to make the case. There shouldn’t be exceptions to this, and it shouldn’t be based on the question of whether or not a suspect is a prisoner of war, an “enemy combatant,” a person of interest, or just a bunch of anti-Semitic crack addicts in the Bronx. The United States Constitution wasn’t written in the abstract; it was — and still is — a clear and practical foundation of both laws and ideas. The men who wrote it knew all too well what the unlimited reach of a monarch could do, and they knew all too well what it was like to live in reactionary times; the American Revolution was still a vivid and recent memory at the time it was crafted. Put in perspective, the times were just as perilous for the nation then as they were on September 12, 2001. Yet the Founding Fathers did not waver from the idea that justice had to be based on the evidence and that defendants were owed a fair trial based on what the prosecution could prove.
In court the guilt or innocence of a defendant comes down to what we see now, not what we think we might see at some future point. The same can be said about trusting our leaders to live up to the realities of the Constitution and the rule of law.