COLUMN: Preventive detention is never a good idea

As of this spring, 28 of the 33 Guantanamo detainees whose cases have gone before federal judges have been ordered released for lack of evidence.

And I don’t mean insufficient evidence to find them guilty, I mean insufficient evidence to even justify keeping them imprisoned (the figures come from blogger and attorney Glenn Greenwald).

The point gives the lie to those who insist everyone imprisoned in Gitmo was “the worst of the worst,” and it also shows why Obama’s calls for “preventive detention” without trial are unjust and dangerous.

The rationale for Obama’s policy is that sometimes the government KNOWS people are terrorists, even though there isn’t enough evidence to prove their guilt in court. Therefore, the only logical solution is to lock them up without proving their guilt.

Bush did this by claiming the power to single-handedly designate “enemy combatants.”

Obama, according to some of the trial balloons that have floated about, wants to do it “legally” by having Congress create a tribunal that will review terrorist cases. People we can convict will get a trial, people we can’t convict will be imprisoned without one.

If the terrorists who go to trial are found not guilty, Defense Department General Counsel Jeh Johnson said this year that under the “law of war,” the administration could still keep them locked up.

Going through Congress might make this sort of thing “legal” but it won’t make it just, Constitutional, or even a good idea.

Consider Mohamed Jawad of Afghanistan, a young teenager in 2002, when he was locked up in Guantanamo until a federal court ruled in July 2009 that he should be released. A system which locks up an innocent boy for seven years of his life without a chance to prove his innocence isn’t just and can’t be justified. Jawad still would be waiting behind bars for a hearing without last year’s Supreme Court Boumediene decision.

Consider World War II’s Japanese-American internment: Thousands of American citizens imprisoned, without trial and without any evidence that they were spies (and most government reports concluded they weren’t). It’s one of America’s most shameful moments.

Whatever system Obama’s administration proposes, it won’t work any better than the internment camps or the “enemy combatant” designation or any of the other tricks our government’s pulled to hold people it doesn’t want running free.

Innocent people will be locked up by mistake, by butt-covering (”I know he looks innocent, but I can’t risk being the man who released the next 9/11 bomber!”), by bigotry or “just in case.” And once the decision is made, they’ll have no way out.

It’s not only about innocence, either: Habeas corpus — the rule that government can’t lock us up indefinitely without charging and trying us — is a Constitutional right. It’s not a gift our government grants people if it decides they’re probably innocent, and it’s not something that can be revoked even if our leaders are certain an alleged terrorist is the real deal.

Twenty-eight out of 33 detainees, remember? Does that sound like our government has the ability to separate the sheep from the goats?

For some people, this is all irrelevant: If our government says the people it’s holding are terrorists, that’s good enough for them.

For others, habeas corpus, the right against self-incrimination and the rest of the Bill of Rights are just legal loopholes to escape justice. Innocent people are never suspects (Reagan-era Attorney General Ed Meese actually said this in an interview) so those rights only benefit the guilty.

For some, it’s the illusion that the truth always lies in the middle. Robert Chesney, a member of Obama’s Detention Policy Task Force, argued in the Washington Post this month that the detention debate has been “dominated by a pair of dueling narratives” when what’s needed is “compromise from both camps ... conceding the complexity of detention policy” to create “reasonably sustainable policies.”

Chesney avoids specifying which policies he thinks are unsustainable, but he appears to be saying that people who insist government obey the Constitution are as nutty as people who think the “unitary president” can ignore it completely. The truth lies in between, with a policy that will ignore the Bill of Rights in a sensible, centrist fashion.

No. No, it doesn’t.

We don’t get to ignore the Bill of Rights just because some criminals do get off scott-free, or because statements obtained by torture can’t be used as evidence or because some people are worried that if we don’t imprison all the Muslims, terrorists will kill us in our beds.

We don’t get to ignore the Bill of Rights, period.

Fraser Sherman is a Log reporter and can be contacted at (850) 654-8442 and Fraser_Sherman@link.freedom.com.