President Obama’s Orwellian New Category of “Prolonged Detention”

By Elliot Cohen for BuzzFlash

On May 13, in a Washington court filing, the Obama Justice Department eliminated the category of “unlawful enemy combatant,” which the Bush administration had built into the 2006 Military Commissions Act for purposes of detaining suspected terrorists without due process.  But now President Obama wants to replace this category with a new system of “prolonged detention” that could conceivably keep detainees in prison into perpetuity in order to prevent crimes they have not yet committed.  Add to this Obama’s continuation of the Bush administration’s program of warrantless spying on millions of Americans, and the recipe for abuse is chilling.

According to the old definition of “unlawful enemy combatant” included in the 2006 Military Commissions Act, an unlawful enemy combatant is "an individual engaged in hostilities against the United States who is not a lawful enemy combatant."  In other words, if the government suspects that an individual poses a threat to national security, he can be detained as an “unlawful enemy combatant.”  But the Obama has now dropped this definition, or has it?

In his May 21 Archives Speech, Obama said, “there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people….” For example, he said, this would 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.”

To deal with these detainees, Obama intends to create a category he has called “prolonged detention” by which “al Qaeda terrorists and their affiliates…that we capture—like other prisoners of war” will be “prevented from attacking us again.”  So we will have “prisoners of war” who allegedly “cannot be prosecuted” for their past crimes but who allegedly pose a future threat to national security for reason of which they will be detained for a “prolonged” period of time.

Since the “prisoners of war” in question are suspected terrorists, and since the “war on terrorism” has no definable end in sight, what “prolonged” here could possibly mean boggles the imagination. Will they ever be released or will they die in prison for crimes they have not yet committed? Moreover, if they really cannot be prosecuted, they cannot be accorded the right of habeas corpus unless this means being charged with the potential to commit a future hostile act against America. All this and Obama still contends that ”we must recognize that these detention policies cannot be unbounded” and that’s why his administration “has begun to reshape these standards to ensure they are in line with the rule of law.”  But just how Obama could square preventively detaining individuals for crimes they haven’t yet committed with the rule of law is beyond comprehension. Obama appears to have missed a major point about the rule of law.  Law is inherently retrospective.  It looks back for purposes of holding people criminally or civilly liable for their past actions. It does not look forward to future acts not yet committed.

In the same speech, Obama has also reaffirmed his opposition to an independent commission to look into the war crimes committed by the Bush administration. “That is what I mean when I say that we need to focus on the future,” said Obama. “I recognize that many still have a strong desire to focus on the past. When it comes to the actions of the last eight years, some Americans are angry; others want to re-fight debates that have been settled, most clearly at the ballot box in November.”

Apparently, Obama does indeed want to forget about the past and to focus on the future.  He wants to forget about prosecuting members of the Bush administation, including Dick Cheney and George W. Bush, for ordering the torture of detainees. The perpetration of such war crimes he prefers to leave buried in the past, but he wants to look to the future by “prolonged detention” of detainees for crimes they did not yet commit.

The Bush administation’s mistake was to create a separate system of rules to apply to “unlawful enemy combatants” and to do so it gutted major legal protections including habeas corpus.  Unfortunately, Obama is now following in the Bush administration’s footsteps.

The legal machinery of our justice system is not incapable of accomodating exceptions.  For example, the Miranda Rule, which requires that a suspect be read his or her rights before being arrested, admits of an exception when Mirandizing a suspect would jeopardize the public safety.  Thus the courts are equipped to set rational precedents should a detainee present a clear and imminent danger to the public saftety.  In fact, it is already a crime to threaten to commit a crime when the intentions are clearly conveyed to the alleged victim and the latter has reasonable belief that the defendant has both the intention and the ability to carry out the threatened crime.  However, if a detainee has threatened no crime (in this case, to perpetrate an act of terrorism), then it is unlawful to charge the individual with a crime.

Further, if a terrorist the likes of Khalid Shaikh Mohammed really did mastermind the 9-11 attacks then it is his past acts, not his future ones, that should be the focus of the courts.  If there were truly evidence that was not obtained as a result of forced confession, then the evidence legally acquired would still be admissible.  On the other hand, if the evidence required to convict a defendant was illegally obtained through torture, then it would be a miscarriage of justice to convict the defendant on the basis of that evidence.

Obama’s new “legal” category of “prolonged detention” sets the dangerous precedent for incarcerating someone for crimes they haven’t yet committed.  This raises the Orwellian specter of the “Thought Police” who come in the dead of night to take away dissidents.  The Obama Justice Department has already signed onto Bush’s program of warrantless spying on the personal electronic communications of American citizens.  The precedent set by preventative incarceration should not be considered apart from such a breakdown of Fourth Amendment protections. The government may not yet be able to read minds but it now has an incredible power to intrude into private communications.  Viewed in this light, it is not such a stretch to imagine being preventatively imprisoned for saying something over a wire that the government thought was “hostile against the United States.”

Unfortunately, Obama’s desire to look to the future has blinded him to the need to learn from the past. Perpetrating wrongs in order to redress wrongs does not equate to justice.

Elliot D. Cohen, Ph.D. is a political analyst and media critic. His most recent books are Critical Thinking Unleashed and Ethics and the Legal Profession. He is a first prize winner of the 2007 Project Censored Award.