On a recent trip to Guantanamo Bay, Naomi Wolf reports in Beirut's Daily Star, she was "stunned" to hear that the Obama administration plans to "sort the detainees into three categories: those who will be tried in criminal courts in the US; those who will be released and sent to other countries; and those who 'can't be released and can't be tried and so have to be held indefinitely...what is being called "preventive detention."'" Wolf's surprise is a bit odd, since President Obama conspicuously announced this plan in a national security speech on May 21. (He also mentioned a fourth category: detainees who will be tried by military commissions instead of civilian courts.) Still, Wolf is right to warn that, when it comes to the detention of terrorism suspects, "Obama seems to be re-branding Bush's worst excesses" (with the notable exception of condoning torture). As a vociferous Bush critic who presumably sympathizes with Obama's economic policies, she deserves credit for noting that his civil liberties record so far falls far short of his "lofty rhetoric."
Based on interviews with detainees' lawyers, Wolf suggests a new explanation for what makes certain detainees impossible to try yet too dangerous to release. The lawyers say it's not just that evidence against the detainees would be inadmissible because it was obtained through torture; Obama does not want to have to acknowledge that torture, a prosecutable crime, occurred at all:
According to Wells Dixon, a lawyer at the Center for Constitutional Rights who represents some of the detainees, the Obama administration cannot risk calling the torture practices crimes, so it calls them "classified sources and methods" that cannot be revealed in court. "I can't even tell you about the way my clients were tortured or I will be prosecuted," he says....
Because Dixon has a security clearance, he cannot discuss those classified "sources and methods." On the other hand, Dixon continued, "When the government does something to [Majid Khan, Dixon's client] that they say is classified, they have disclosed to him classified information. But since he doesn't have a security clearance, there is nothing that prevents him, unlike me, from saying to the outside world, 'This is what they did to me.' Nothing prevents that—except for the fact that he is physically in custody."'
The "logical conclusion," according to Dixon, is that Khan "must be detained for the rest of his life—regardless of whether he is ever charged with a crime—because if he was ever released, nothing would prevent him from disclosing this information.
Wolf might have mentioned another aspect of Obama's detainee policy that was revealed last month: For the detainees who do get trials, the "due process" seems to be just for show, since they can be kept in "preventive detention" even if they're acquitted. Also, it should be emphasized that we are not just talking about the detainees currently held at Guantanamo. Under the principles Obama has laid out, anyone suspected of ties to terrorism, no matter who they are or where they are arrested, can be held indefinitely without trial. Such detention is subject to habeas corpus review (based on a standard of proof substantially lower than the one that applies to criminal trials), but it's not clear Obama is prepared to respect the outcome of that process either.