Just say NO to preventive detention

Prisoner at Guantanamo. REUTERS/Brennan Linsley/Pool.

President-elect Obama faces difficult options for dealing with the Guantanamo prison camp. As in so many areas, the Bush administration is bequeathing Obama a problem it created and couldn't or wouldn't solve.

Most of the unfortunates locked up in our Caribbean gulag were there by mistake -- vague associates of vaguely shadowy characters in societies we didn't understand -- or simply folks sold to a credulous U.S. military by bounty hunters. We released a lot of these and they come out severely damaged. A new report from the International Human Rights Law Clinic at UC Berkeley School of Law based on post-release interviews details what was done to them:

Over half of the study respondents who discussed their interrogation sessions at Guantánamo (31 of 55) characterized them as "abusive." Detainees reported being subjected to short shackling, stress positions, prolonged solitary confinement, and exposure to extreme temperatures, loud music, and strobe lights for extended periods—often simultaneously. The authors conclude that the cumulative impact of these methods, especially over time, constitutes cruel, inhumane, and degrading treatment and, in some cases, rises to the level of torture.

Those were the Guantanamo prisoners the Bushies let out. They are still holding the ones they think actually may have committed a crime -- the same ones they tortured so horribly that the evidence against them would never be usable in any court but one of their kangaroo military commissions.

William Glaberson reports in the New York Times on the arguments in the Obama camp about what do with these people. If ordinary U.S. law were applied, most would walk because of government misconduct. Some, including honorable legal experts who have opposed Guantanamo, want Congress to pass a preventive detention law that would authorize holding people accused of terrorism connections who the state could not convict in ordinary courts.

But, if it could be passed, does the new President want to use his political capital to evade the historic tradition of the primacy of established law? What kind of signal would a new preventive detention law send to a world desperately hoping Obama signals a new sort of U.S. behavior? Glaberson opines:

In the end, the Obama administration may conclude that it is simply not feasible to seek a new preventive detention measure. Doing so could portray the new administration as following in the footsteps of President Bush, surely an unlikely goal as Mr. Obama sorts through his options.

Once again, it is up to we the people to rub in the reality that law-evading detentions have to cease being public policy if our vaunted "freedom" means anything.