The Bush administration will no doubt be remembered for torture, Guantanamo, and Abu Ghraib, as well as for catchy euphemisms like “enhanced interrogation” and histrionic catch-phrases like “the Global War on Terror.”
The Obama administration has introduced a new lexicon that includes words like “fairness,” “values,” and “the Constitution.” But there are worrying signs, as the new government’s policies develop, that its change in vocabulary is more striking than its change in ideas.
President Obama did make immediate and crucial reforms in barring torture and closing CIA “black sites.” Unfortunately, the White House hasn’t shown similar leadership in ending the practice of indefinite detention without charge, a central and defining Bush-era abuse.
In a high-profile national security speech he gave in May, President Obama asserted that the military prison at Guantanamo held some number of terrorism suspects who could not be convicted of a crime, but who were nonetheless too dangerous to release. According to a report in the Washington Post on Saturday, the Obama administration has now drafted an executive order that would allow such prisoners to be held indefinitely without charge.
To disguise its plans for relying on a practice that is more characteristic of repressive governments than of constitutional democracies, the Obama administration has even invented its own euphemism. In his May speech, President Obama spoke only of “prolonged” detention, not of indefinite detention, or preventive detention, or detention without charge.
The label is new, but what of the substance behind it? To the many prisoners at Guantanamo who’ve already been held for more than seven years, “prolonged” may be to detention what “enhanced” was to interrogation.
Four Reasons for the Obama Administration to Rethink its Plans
It is not too late for President Obama to change course, and the reasons to do so are compelling.
1. Indefinite detention without charge is unjust, unconstitutional, and inconsistent with US law and traditions. American society has long dealt with dangerous people through criminal prosecution before competent, independent and impartial courts. US law provides ample grounds to prosecute and imprison anyone who has taken even a small step toward committing an act of terrorism.
Preventive detention, which allows imprisonment based on the suspicion that someone will take dangerous action in the future, is a radical departure from this tradition.
2. Indefinite detention without charge will bring Guantanamo on shore. The fight to close Guantanamo was meant to end the practice, unprecedented in US history, of detaining suspects arrested outside of a traditional armed conflict and holding them for years without charge or trial.
By bringing the practice of indefinite detention without charge onto US soil, the Obama administration would be closing Guantanamo in name only.
3. US reliance on indefinite detention without charge will embolden repressive governments elsewhere. Indefinite detention without charge is a hallmark of governments like China, Egypt, Libya, Syria and Saudi Arabia, each of which hold hundreds in preventive detention, as did apartheid-era South Africa. If the United States were to continue to bypass accepted criminal justice rules, it would encourage repressive governments like these.
Already, several authoritarian rulers have pointed to US abuses at Guantanamo to justify their own actions. In Libya, notably, head of state Mu’ammar Qaddafi bragged to the Libyan public during his 2002 address to the nation that he was treating terrorist suspects “just like America is treating [them].”
4. US reliance on indefinite detention without charge will reinforce the terrorist narrative.
Holding detainees without charge as members of an enemy force risks elevating their status. Terrorists want to be seen as warriors, not criminals, and they use that status to recruit more “fighters” to their cause. A good example is admitted al Qaeda operative Khalid Sheikh Mohammed, who proudly embraced the designation of combatant during administrative hearings at Guantanamo, using it to compare himself to George Washington.
Far better to have fair and independent court proceedings that will stigmatize such men as terrorists, murderers and criminals.
Fort Leavenworth Could Be the New Guantanamo
President Obama criticized Guantanamo when he was running for office, but he risks replicating it now. Obama’s Guantanamo may have a different name—it may be called Fort Leavenworth or Camp Pendleton—but if it holds terrorist suspects for years without charge, its meaning will be the same.
Whether established by executive order or congressional legislation, a policy of indefinite detention without charge or trial is wrong. As a world leader and constitutional law scholar, President Obama should think hard before taking any further step to institutionalize the discredited practice that made Guantanamo such a stain on the reputation of the United States.
JOANNE MARINER is a human rights lawyer living in Paris.