Has the Obama administration really endorsed the reality of preventative detention -- an American gulag, indefinite imprisonment without trial for battlefield enemies? It depends on who you ask. Administration officials acknowledge that the question is tricky; even as they insist that the decisions they're making about Guantanamo Bay prisoners will only apply to Guantanamo Bay prisoners, they concede that those dispositions will set a precedent that will likely result in some sort of ... well, indefinite detention system for future detainees. That Rubicon has been crossed; there exist human beings in this world who could be indefinitely held without trial under the authority of the president of the United States.
When Obama met Wednesday with leading human rights activists, he was pressed about this very issue as regards to the precedents that his actions would set and what they would say about American justice. (Participants were armed with good questions and some of them, knowing Obama personally, knew that he always pays attention to the larger narrative his decisions will create.)
According to participants and to administration officials, the President acknowledged the gravity of the question but chose not to answer it directly. (That's probably because, with the swirl of court cases, he doesn't know just yet what Article II powers will be available to him.) Obama then asked those assembled to help his administration draft guidelines for military commissions -- lasting guidelines, guidelines that would outlive his administration.
He was blunt; the MCs are a fait accompli, so the civil libertarians can either help Congress and the White House figure out the best way to protect the rights of the accused within the framework of that decision, or they can remain on the outside, as agitators. That's not meant to be pejorative; whereas the White House does not give a scintilla of attention to its right-wing critics, it does read, and will read, everything Glenn Greenwald writes. Obama, according to an administration official, finds this outside pressure healthy and useful.
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