Preventive Detention: What Would Thomas Jefferson Do?
By all accounts, the White House is going to unveil its proposal for indefinite detention within the next four to eight weeks, and it has begun dispatching proponents of that scheme to lay the rhetorical groundwork. In The Washington Post today, one of the proposal’s architects — Law Professor Robert Chesney, a member of Obama’s Detention Policy Task Force — showcased the trite and manipulative tactics that will be used by advocates of indefinite detention to win support for their radical program [anyone doubting that detention without trials is radical should recall that Obama’s own White House counsel Greg Craig told Jane Mayer back in February that it’s “hard to imagine Barack Obama as the first President of the United States to introduce a preventive‐detention law”; New York Times reporter William Glaberson wrote that “Obama’s detention policy “would be a departure from the way this country sees itself”; Sen. Russ Feingold warned that it “violates basic American values,” “is likely unconstitutional,” and “is a hallmark of abusive systems that we have historically criticized around the world”; The New York Times’ Bob Herbert said that “Americans should recoil as one against the idea of preventive detention”; and the Obama policy’s most vigorous Congressional proponents are Tom Coburn and Lindsey Graham].
According to Chesney, though, the real extremists are those “on the left” who oppose preventive detention; those who believe that radical liberties such as criminal charges, trials and due process are necessary before the state can put someone in a cage for life; those who agree with Thomas Jefferson that trial by jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Chesney insists that such people (these “leftists”) are (as always) the mirror images of the extremists on the Right, who “carelessly depict civil‐liberties advocates as weak‐kneed fools who are putting American lives at risk.” These two equally partisan, radical, extremist sides (i.e., those who believe in due process and trials and those who oppose them) are — sadly — “shrink[ing] the political space within which reasonable, sustainable policies [i.e., Chesney’s preventive detention scheme] might be crafted with bipartisan support.”
…This is how political debates are typically carried out in Washington by the Serious Centrists and Responsible Adults. Chesney writes an entire Op‐Ed defending the soon‐to‐be‐unveiled preventive detention policy without describing a single aspect of it. To Serious people, the substance of the policy is irrelevant. What matters is that anyone who opposes it is a radical, partisan, shrill extremist. Conversely, as long as the Obama administration stays somewhere in the middle of the two sides — between Tom Coburn and Russ Feingold — then it proves they are being sensible, moderate and responsible, regardless of how extreme and dangerous their proposal actually is, and regardless of how close to Coburn and as far from Feingold as they end up.
No system of justice is perfect. But it’s no improvement to decide that in certain cases we can just do better without one.
All that such a policy does is to move the act of judging back one level — and to locate it at the point where someone, somewhere decides that this particular case doesn’t get judged in the usual way. And so the accused gets “detention” rather than “trial, followed possibly by prison.” But we are still putting a person, and perhaps a dangerous person, in a cage, are we not? The acts of judging and of punishing are still there, and we have hidden them only from ourselves.
It is no improvement to shift the fundamental problem of justice to a different location — out of open courtrooms, out of review, out of established legal tradition — and into a shadowy realm where potentially anything goes. We’re deluding ourselves if we think that it is a step forward or a refinement in the criminal law to have its work done somewhere else, by someone else. The work goes on, and with it all of the associated dangers. Western legal philosophy has spent centuries forcing these dangers out into the open, so that we may confront them directly.
But oddly, Professor Chesney is actually right in one respect:
The problem is twofold. First, the national dialogue has been dominated by a pair of dueling narratives that together reduce the space available for nuanced, practical solutions that may require compromise from both camps. On the one hand, critics of the government’s policies promiscuously invoke the post‐Sept. 11 version of the Imperial Presidency narrative, reflexively depicting security‐oriented policies in terms of executive branch power aggrandizement (with de rigueur references to former vice president Dick Cheney; his chief of staff, David Addington; or Justice Department attorney John Yoo, if not all three). On the other hand, supporters of the government’s policies just as carelessly depict civil‐liberties advocates as weak‐kneed fools who are putting American lives at risk.
Second, individual issues in the debate over detention policy are often framed in stark and incompatible terms. Take, for example, the Guantanamo detainees, who are portrayed in some quarters as innocent bystanders to the last man and in other quarters as the “worst of the worst.” While both extremes are misleading, their influence is pervasive.
True enough. A reasonable middle position? Give the detainees trials in which they can individually prove their guilt or innocence. Surely they aren’t all guilty, and I don’t believe I’ve ever seen anyone claim that they are all innocent, either. The truth really is somewhere in between, and it just so happens that we already have a mechanism for sorting out muddled cases like these.
