Corrosive detention

President Obama has departed decisively from the lawlessness and barbarism of the Bush administration’s anti-terror policies, even if you believe -- as this page does -- that he could go further. His reasoned defense of his approach to terrorism in a speech last month was an edifying contrast to the self-justifying rant by former Vice President Dick Cheney on the same day.

Yet one passage in Obama’s speech provoked dismay among civil libertarians. After delineating how the administration would treat four categories of detainees -- those accused of violating U.S. law, those charged with war crimes, those ordered released by the courts and those who can be repatriated -- the president identified a fifth: those “who cannot be prosecuted yet who pose a clear danger to the American people.”

Those suspected terrorists would be held without trial. “I am not going to release individuals who endanger the American people,” Obama said. A final judgment on his plan must await further details. But we accept -- uneasily -- the basic principle. If Obama is willing to wrestle with what he calls “the toughest single issue that we will face,” so must those of us who consider the same question.

Preventive detention -- holding someone primarily because of what he might do in the future -- is an exception in the U.S. judicial system. Under a federal law upheld by the Supreme Court, some criminal defendants can be detained before trial, but in some cases Obama is willing to dispense with a trial. He says he is determined to exercise that authority rarely and to subject himself and future presidents to oversight by other branches of government. Those are gratifying promises, but they also serve to remind that detention without trial, although commonplace in wartime, challenges basic assumptions of U.S. justice when practiced over an indefinite period and an undefinable battlefield.

As in so many areas, Obama must drink from a poisoned chalice handed to him by his predecessor. By using “enhanced interrogation methods” -- torture -- to extract information, the Bush administration tainted evidence so that it cannot be introduced at either a trial or a military commission. By refusing to recognize the detainees at Guantanamo Bay as prisoners of war, Bush officials made it harder for Obama to argue that in some respects the remaining detainees are more like POWs than criminals. Finally, by sluggishly releasing hundreds of detainees who had been designated enemy combatants, the Bush administration forfeited credibility for its claim that the population at Guantanamo was “the worst of the worst.”

Some detainees surely fit that description, such as Khalid Shaikh Mohammed, the admitted 9/11 conspirator who indicated to a military tribunal last year that he would plead guilty. If Mohammed were brought to trial, prosecutors would have to reckon with the outrageous fact that he was waterboarded 183 times. Similar evidentiary problems could hobble other prosecutions. These are the suspects Obama said “cannot be prosecuted for past crimes.” But they aren’t the only problem cases. Obama also referred to “people who’ve received extensive explosives training at Al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.” Those detainees, he said, “in effect remain at war with the United States.”

As those provocative words make clear, the U.S. was and still is in an armed conflict with Al Qaeda and its affiliates and with the Taliban. Congress hasn’t repealed its 2001 resolution authorizing military force against “nations, organizations or persons [the president] determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons.”

Those accused of violating U.S. law should be tried in civilian courts -- and acquittals should result in release. As a study by Human Rights First notes, 145 accused terrorists have been convicted or pleaded guilty in federal court, including 9/11 conspirator Zacarias Moussaoui. For the small number for which evidence is too compromised -- or for those captured abroad while training to do harm to this country -- there may be rare instances in which detention as a prisoner of war is warranted. If that occurs, Obama must be held to his promise: “We must have clear, defensible and lawful standards for those who fall into 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.”

The review Obama has promised must be entrusted to a federal court and not be undertaken wholly within the executive branch. The Supreme Court already has ruled that detainees can challenge their confinement by petitioning for a writ of habeas corpus. A national security court along the lines of the tribunal established by the Foreign Intelligence Surveillance Act would increase judicial oversight -- but legislation establishing such a court should expire after a few years so that Congress would be forced to review its performance.

Historically, prisoners of war have been held until hostilities conclude. That’s relatively simple when the enemy is a national government and a war ends in surrender or truce. When the enemy is more amorphous, it is difficult to know when the battle is over and the combatants can return home. Given that, any system for holding prisoners in this conflict must be accompanied by a process for regular review -- by Congress or the courts -- to determine whether hostilities have ended and prisoners may be released. Such a determination cannot rest solely with Obama or his successors.

None of the safeguards promised by the president can completely assuage a concern that the open-ended nature of the struggle against terrorism is undermining American values. But if Obama concludes that there are dangerous detainees who are still at war with the United States, long-established rules of conflict will serve us best. They should be treated as prisoners of war with the additional right -- not accorded to POWs in a conventional war -- to be released when they can convince a court that they no longer pose a threat to the United States.