War: What Is It Good For?

Martial rhetoric is not enough to justify preventive detention.

"Apparently using the word war where terrorists are concerned is starting to feel a bit dated," former Vice President Dick Cheney complained in his speech at the American Enterprise Institute last week. Although he implied that the Obama administration showed weakness by using "euphemisms that suggest we're no longer engaged in a war," he added that "these are just words, and in the end it's the policies that matter."

But as President Obama showed in the speech he delivered the same day, he still clings to the language of war when discussing terrorism. Like his predecessor, he uses such rhetoric selectively, to justify departures from standard legal procedures when they prove to be inconvenient.

"Let me be clear," the president said early in his speech. "We are indeed at war with Al Qaeda and its affiliates."

Is this a literal war? Apparently not. Several paragraphs before, Obama had noted that "we're fighting two wars," referring to Iraq and Afghanistan. While elements of Al Qaeda or its affiliates may be involved in both, they are not the main enemy in either country.

The literal and metaphorical meanings of war collide in Obama's plans for the 240 remaining detainees at Guantanamo Bay. "Whenever feasible," he said, "we will try those who have violated American criminal laws in federal courts." But he added that "detainees who violate the laws of war" are "best tried through military commissions."

Isn't that all of them? The Bush administration said anyone accused of links to Islamic terrorism violated the laws of war by definition. Attorney General Eric Holder has endorsed the view that the battlefield in the war against Al Qaeda is not limited to scenes of combat and that anyone the government thinks is tied to the network, no matter where he is captured, can be detained by the military.

The Bush administration switched back and forth between military detention and civilian prosecution of terrorism suspects, with no apparent rhyme or reason. It's not clear yet what criteria the Obama administration will use to decide whether detainees should be tried in federal court or by military commissions, which even with the reforms outlined by the president will offer less protection against wrongful conviction.

Obama also wants to keep some detainees locked up indefinitely without trial, a policy identified with the prison he plans to close and the administration he criticized for ignoring due process. In contrast with the Bush administration, he promises "clear, defensible, and lawful standards for those who fall into this category."

The "lawful" part sounds promising, since it's generally preferable to deprive people of their freedom based on statutory authority rather than presidential whim. Yet an institutionalized system of preventive detention, justified by a war that Obama concedes will never come to a definitive end, could be worse than Bush's ad hoc unilateralism.

Obama's preview of the standards for "prolonged detention" was puzzling. "There may be a number of people who cannot be prosecuted for past crimes," he said, "but who nonetheless pose a threat to the security of the United States." He mentioned "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."

As Obama noted, defendants like these have been successfully prosecuted in federal court. The only specific reason he suggested why some detainees can't be was "tainted" evidence. By that he presumably meant "statements that have been obtained using cruel, inhuman, or degrading interrogation methods," which were never admissible in federal court and which Obama wants military commissions to exclude as well.

If there are other reasons why trials are not feasible for some terrorism suspects, Obama needs to explain them. The extraordinary, ominous step of preventive detention cannot be justified simply by saying these detainees "remain at war with the United States." Cheney is right: These are just words.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.