Let's Knock Off the Talk About Preventive Detention
Most people accept the need to detain or quarantine individuals with highly communicable, potentially deadly diseases. Most people accept the need to detain mentally ill individuals who pose a serious risk to the safety of others. Too many people accept the need to detain sex offenders after they've finished their sentences for fear that they pose a substantial risk to reoffend if released.
The concept of preventive detention has prevailed at Guantanamo, albeit in unrecognizable form. When the diseased are no longer contagious, they are released from quarantine. If the mentally ill or "sexual predators" respond to treatment and are no longer dangerous, they're released. It's never been clear what condition, other than an unrecognizable victory in the war against terror, would trigger the release of the Guantanamo detainees. And unlike individuals detained pursuant to civil commitment laws, no Guantanamo detainee has had a hearing the meets even minimum standards of due process to establish a basis for his detention.
A New York Times article today examines whether the Obama administration might adopt a preventive detention law to continue holding Guantanamo detainees. [more ...]
The article cites no evidence, or even a reason to suspect, that Obama would favor a preventive detention law. It suggests, however, that Obama is being pressured to show that he's just as tough as Bush by being just as disdainful of the Constitution. Obama should be confident that Americans will respect his manhood even if he recognizes that the Guantanamo detainees are entitled to fair treatment under the law.
The Times article includes disturbing passages like this:
Even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted.
“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,” said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.
It doesn't take a purist to wonder how preventive detention for supposedly dangerous suspects who "cannot be successfully prosecuted" would work. Would Guantanamo be relocated to a remote American island, maybe one of those Alaskan islands with a view of Russia? What standard of dangerousness does it take to detain people who haven't committed provable crimes? What proof of dangerousness would be acceptable? Confessions obtained through torture? Third-level hearsay?
If the Guantanamo detainees committed crimes against the United States, we have civilian and military court systems in place to determine guilt while respecting due process. Even if "several [detainees] have said they would relish an opportunity to kill Americans," what should we do? Hold them until they change their minds or die? If we can't prove that they have acted upon those thoughts, their animosity toward the United States is insufficient reason to brand them as dangerous and to detain them indefinitely.
Fundamental to a free society is the belief that we do not imprison people for their thoughts. Exceptions exist for dangerous thoughts that produce uncontrollable actions, but angry men, even angry jihadists, can control their conduct. If they have not committed provable crimes, they should be released to their home countries no matter what homicidal fantasies they might relish.
The true but unstated rationale for continuing the preventive detention of Guantanamo detainees is: "We can't prove beyond a reasonable doubt that they participated in harming or conspiring to harm any Americans but we know they were up to no good so we need a lower standard of proof and a system that lets us detain them indefinitely."
Let's not change the rules out of fear. We don't need a new court. We don't need preventive detention. We just need to follow the law.
Barack Obama, Just Say No to preventive detention.
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