With its myriad of “desk officers” and “stovepipes,” the hierarchy of the executive branch is well-suited for managing stability. But when new problems arise, it tends to take them piecemeal, often with little consideration of how they are interrelated or of the larger historical questions at stake. At the White House — which in the modern era has become a permanent campaign perpetually harried by the crisis of the moment — there is little time for meditation on ultimate historical issues. As a result, the nation has become woefully bereft of the capacity for choice on a historical scale.
A great leader can overcome this inertia by challenging the people to tackle the most fundamental and difficult issues of the age. The attacks of September 11 left many such issues in their wake — take for example that of how to handle terror suspects. Obama announced that he would be closing Guantanamo within a year, leaving himself just that much time to solve one of the most difficult issues of the War on Terror. But pending the administration’s internal review, Obama’s comments on this issue have been mostly ornamental. To paraphrase Oscar Wilde, he doesn’t have a lot to say, but he says it charmingly.
Before September 11, there was a difference between a prisoner of war and a criminal defendant.
Prisoners of war are normally held until the cessation of hostilities in order to prevent their returning to the fight. This is true even if they are completely innocent of wrongdoing — in which case they enjoy many protections and privileges under the Geneva Conventions. But early release is not one of them. In wartime, the overriding concern becomes public safety.
Criminal defendants, on the other hand, have always been afforded rights to a speedy trial and to confront witnesses, and other protections of the justice system, because in peacetime, the overriding concern becomes individual liberty.
Because terrorists blur the distinction between the two categories, their attorneys invoke both sets of protections. As a result, terrorists stand to accumulate the protections we offer to each category, and stand to wind up in a better position than if they were just one or the other.
But we can’t give terror suspects the full privileges of prisoners-of-war status, because in doing so we would vitiate a key purpose of the Geneva Conventions: to create incentives for soldiers to comply with the laws of war. If even terrorists who hide among civilians and intentionally target them are afforded Geneva protections, why should any soldier abide by the rules of war?
Similarly, terrorist criminals cannot be allowed to benefit from the fact that they are more dangerous than common criminals. And even when we know that they have committed crimes, our evidence may be in the form of “intel” that is vital to ongoing investigations, or that “belongs” to a foreign government, making it impossible to prosecute them in a normal way.
The Bush administration took upon itself the task of devising a balanced, rational, and ethical scheme for dealing with this new kind of detainee — at least that’s what they tried to do. But Bush didn’t go to Congress until adverse federal-court rulings forced him to.
That was a mistake. Expanding preventative detentions beyond “prisoners of war” to broader populations that seem more like criminal defendants can only constitute a dramatic expansion of state power. This is especially true because holding them until the “cessation of hostilities,” when no formal surrender will ever be forthcoming, is potentially the same as a life sentence for everybody detained on suspicion of terrorist activity. The threat to individual liberty is obvious.
The resulting dilemma strikes at the heart of our social contract, and implicates the eternal conflict between individual liberty and state authority. Only “the people in Congress assembled” should decide where to strike the balance.
Obama could arguably base his entire criticism of Bush’s Guantanamo policies on this analysis. Instead, when 60 Minutes recently asked him to respond to former Vice President Cheney’s criticism of his Guantanamo policy, what viewers got was a sophomoric talking point drawn almost verbatim from the Democratic party’s 2008 convention platform:
I think that Vice President Cheney has been at the head of a movement whose notion is somehow that we can’t reconcile our core values, our Constitution, our belief that we don’t torture, with our national security interests.
Dick Cheney thinks no such thing, nor do any of his supporters. What we do think is that it is sometimes difficult to reconcile public safety with the rights of the individual. One of the most profound insights of Enlightenment political philosophy is that the conflict between individual liberty and public security is an unavoidable attribute of government.
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?”
Now that 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.