In his timeless essay On Liberty (1869), John Stuart Mill argues that “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.” The purpose of Mill’s essay — which traces the history of the conflict between “Liberty and Authority” — is to demonstrate that any exercise of government power can come only at the expense of individual liberty, and is therefore justifiable only on grounds of public safety. A moment’s reflection suffices to see how crucial this idea is to the whole conservative philosophy of limited government.
The 2008 Democratic party platform states: “In recent years, we’ve seen an Administration put forward a false choice between the liberties we cherish and the security we demand. The Democratic Party rejects this dichotomy.”
How childish. This is not a false choice. It is a fundamental choice — and sometimes a very difficult choice. It is the same species of choice that Abraham Lincoln put to Congress in his little-noticed but crucial address of July 4, 1861, when — barely four months into office — he had to justify the arguably unconstitutional measures with which he had responded to the secession of the southern states. These included his suspension of habeas corpus without an act of Congress, in order to allow sweeping summary detentions of suspected Confederate sympathizers in Union states, about which he said, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?”
was a difficult question for the people to consider. Lincoln went to the Congress to seek its imprimatur for the measures he felt necessary. Historic conflicts between individual liberty and public security can only legitimately be settled by the people. The role of great leaders is to put such choices to the people in the starkest and most historical terms.
Instead, Obama chooses terms like these: “How many terrorists have actually been brought to justice under the philosophy that is being promoted by Vice President Cheney?”
He’s missing the whole point. Terror suspects are not just criminal defendants. It’s not simply a question of justice. They must be detained preventatively — as a matter of public safety — and we need a constitutionally valid and ethical framework to do it. The capacity of even a small cell of these people to inflict devastation on the scale of Pearl Harbor has already been demonstrated. That is the whole reason we are fighting — and killing — illiterate “Taliban” teenagers day after day on the other side of the world.
In this exchange from the 60 Minutes interview, the dilemma seems finally to be dawning on the president:
PRESIDENT OBAMA: The whole premise of Guantanamo promoted by Vice President Cheney was that somehow the American system of justice was not up to the task of dealing with these terrorists. I fundamentally disagree with that. Now, do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter down the block? Of course not.
STEVE KROFT: What do you do with those people?
PRESIDENT OBAMA: Well, I think we’re going to have to figure out a mechanism to make sure that they not released and do us harm. But– do so in a way that is consistent with both our traditions, sense of due process, international law.
Well, well, well. He slams Cheney for thinking the justice system can’t handle these terrorists, and then in the next breath admits that the justice system can’t handle these terrorists. After all, what does the justice system consist of if not Miranda rights, and treating all suspects impartially (like the shoplifter down the block), and the whole panoply of protections we offer criminal defendants? If the terrorists deserve habeas corpus rights, then why don’t they deserve Miranda rights? And who gets to decide exactly what they deserve — the president? And on top of everything, Obama even recognizes the need for preventative detention. What “mechanism to make sure that they are not released and do us harm” does he think he’s going to “figure out”? By this point I can’t even imagine what Obama thinks he disagrees with Cheney about.
The fact is that Obama’s decision to close Guantanamo has solved nothing but a cosmetic problem — just like the decision to drop the term “enemy combatants” without changing anything substantial about their legal status.
Obama is emerging as a master of cosmetics. But he shows little sign of really understanding the questions that his predecessors faced, nor of how difficult those questions are. Now he has to focus on them, understand them, and come up with answers — and he will still need to put the matter before Congress so the people can choose where to strike the balance. Let’s hope he’s precocious enough to accomplish all of that in his freshman year.
– Mario Loyola, a former adviser at the Pentagon and in the U.S. Senate, is a visiting fellow at the Foundation for Defense of Democracies.