This was a great speech.  It was a grown-up speech delivered in a thoughtful manner, which, unfortunately has become rare in American politics.

First, my favorite parts:

The arguments against these techniques did not originate from my Administration. As Senator McCain once said, torture “serves as a great propaganda tool for those who recruit people to fight against us.” And even under President Bush, there was recognition among members of his Administration – including a Secretary of State, other senior officials, and many in the military and intelligence community – that those who argued for these tactics were on the wrong side of the debate, and the wrong side of history. We must leave these methods where they belong – in the past. They are not who we are. They are not America. [...]

So the record is clear: rather than keep us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it. That is why I argued that it should be closed throughout my campaign. And that is why I ordered it closed within one year. [...]

I knew when I ordered Guantanamo closed that it would be difficult and complex. There are 240 people there who have now spent years in legal limbo. In dealing with this situation, we do not have the luxury of starting from scratch. We are cleaning up something that is – quite simply – a mess; a misguided experiment that has left in its wake a flood of legal challenges that my Administration is forced to deal with on a constant basis, and that consumes the time of government officials whose time should be spent on better protecting our country.

Indeed, the legal challenges that have sparked so much debate in recent weeks in Washington would be taking place whether or not I decided to close Guantanamo. For example, the court order to release seventeen Uighur detainees took place last fall – when George Bush was President. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican Presidents. In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place. [...]

Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders – highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal “supermax” prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: “The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational.” [...]

And now the part that has everyone in collective riot-mode:

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees – not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

This is the so-called “preventive detention” section.  This is an exceptionally difficult issue in an era of non-uniformed combatants.  “Preventive detention” is not necessarily a new, or unlawful approach when at war.  This is exactly what a POW is.  A POW is someone who has not committed any crime, but is being held by an opposing force in an armed conflict simply to prevent them from returning to the battlefield.  In a uniformed, formal conflict between nation-states, this is a relatively straight-forward procedure.  Uniformed soldiers from the opposing nation-state are imprisoned until the cessation of hostilities, and are then released.

However, in our particular conflict with al-Qaeda and the Taliban, this becomes much more complex.  How are we sure that a person is an al-Qaeda fighter?  What constitutes a cessation of hostilities?  Will it ever occur?  Would these persons ever stop fighting America, even if the organizations they belong to surrender?

All of these problems seem to push in the same direction: indefinite, unlimited detention of indeterminate persons of various nationalities.  This is, quite plainly, a recipe for disaster, which is why there are many voices disparaging this approach as unworkable and indefensible; something that should be scrapped immediately.

But I think this argument lacks the perspective of someone who is solely charged with defending Americans.  Consider, for example, a Taliban fighter, captured in Afghanistan, who is evidently skilled in bomb-making, but has not been charged with a crime.  This fighter pledges his hatred of Americans, and it is almost certain that, if released, would return to the battlefield and kill Americans.  Is it responsible to release this person?  I would say no.  But the implications of this can be incredibly far-reaching, and can lead to a slippery-slope very quickly.

And indeed it did, as evidenced by the last 8 years.  We went from the situation outlined above to, “Well, this guy’s probably in al-Qaeda, and he might have been trained, and he doesn’t say he hates us, but I can just tell by looking at him.”

And herein lies the problem.  How do responsibly detain those that would kill Americans upon release, yet have enough restraint to not detain people arbitrarily, with an ever-loosening standard of imprisonment?

This is what Obama’s trying to do.  Is it unworkable?  Maybe.  Is it a dictatorial sham, and a mad-power grab for the executive?  I’d say no.

I’d say with this one, the devil is in the details. So, we’ll see.

This entry was posted on Saturday, May 23rd, 2009 at 1:34 pm and is filed under No Pulp. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.