Rebooting our reputation

Although I applaud Obama's decision to include his middle name when he takes the oath of office next month -- if for no other reason that it will further drive wingnuttia to demented despair -- I don't think that will have much effect if he listens to the handwringers who think legalizing Guantanamo is a good idea.

But even as President-elect Obama repeats his oft-made promise to shutter the prison that has so besmirched the nation's reputation, some legal experts, and not just those on the right, are talking about giving him the right to open a new Gitmo here at home. An extraordinary debate is under way about whether Congress should expressly authorize the new president to do what the outgoing president did on his own claimed authority: imprison alleged terrorists without charge or trial.

It may surprise some to learn that in the waning days of the Bush administration, there is an emerging narrative in Washington think-tank circles -- a narrative that shows signs of congealing into "bipartisan consensus" -- that Congress should enact a law that expressly permits such detention. What underlies the consensus is the theory that our criminal justice system is unequal to the task of detaining terrorists in a dangerous world. The impetus for this discussion is the likelihood that an Obama administration will, in fact, move to close Guantánamo, and its urgency is supplied by the claim that among the 250 prisoners still imprisoned there are many who are too dangerous to release, but too difficult to prosecute. Accordingly, the argument goes, unless Congress devises a new legal framework for detaining terrorism suspects for preventive purposes, the closing of Guantánamo means that hordes of terrorists will be released to carry on their war against America.

Proponents of a new detention-without-trial regime contend that there are a sizable number of detainees at Guantánamo whose release would pose an unacceptable risk, but whose prosecution in our traditional criminal justice system would face insurmountable obstacles. For example, Matthew Waxman, who held senior positions in both the State and Defense Departments under President Bush and now teaches at Columbia Law School, states that "criminal prosecutions [of Guantánamo detainees] should be carried out whenever possible," but insists that "the evidence against a particular suspect often can't be presented in open civilian court without compromising intelligence sources and methods," and furthermore, that "the evidence may not be admissible under U.S. criminal law rules." Benjamin Wittes, a Brookings Institution scholar and author of "Law and the Long War," which advocates a new detention regime, is more blunt in explaining why some terrorism suspects cannot be criminally prosecuted: "because they have not committed crimes cognizable under American law, because evidence against them was collected in the rough and tumble of warfare and would be excluded under various evidentiary rules, or because the evidence is tainted by coercion." For those reasons, Wittes contends, Congress must move quickly to enact a law that would authorize the long-term detention without trial of suspected terrorists, following some kind of judicial process to assess the dangerousness of the detainee.

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But perhaps the most salient flaw in the current crop of detention proposals is that they are solutions in search of a problem. The class of people who cannot be prosecuted but are too dangerous to let go is either very small or nonexistent. To the extent that it exists at all, it is a class that was created by the administration's torture policies. To build a system of detention without trial in order to accommodate those torture policies would be a legal and moral catastrophe, a mistake of historic proportions.

How an Obama administration chooses to tackle these issues will determine, in large part, the legal legacy of the last eight years. Even the clearest renunciation of torture will be an empty gesture if we simultaneously construct a new detention regime meant to permit prosecutors to rely on torture's fruits. That our justice system prohibits the imprisonment of human beings on the basis of evidence that was beaten, burned, frozen or drowned out of them is evidence of its strength, not its weakness. It is why we call it a "justice system" in the first place.

It is possible, though unlikely, that one consequence of the Bush administration's criminal embrace of torture is that the United States will be compelled to release an individual who might otherwise have been prosecutable for terrorism. Were this to occur, it would not be the first time that our commitment to the rule of law has required that we let a potentially dangerous person walk free. We can accept this risk as an inherent cost of freedom, or we can diminish that freedom in a misguided -- and shortsighted -- attempt to reduce that risk. The choice we make will not determine the nation's survival. It will, however, shape its identity.

Read, as they say, the whole thing.