Benjamin Wittes joined experts in a New York Times running commentary to discuss President Obama’s decision to close Guantánamo and the challenges the administration now faces. He also sat for the following video Q&A, which precedes the running commentary.
President Obama’s speech this morning was really two speeches. The first, which will no doubt garner most of the media’s attention, was a prickly campaign-like argument with the prior administration about who is responsible for the mess the president now faces at Guantánamo Bay. It was a remarkably defensive presentation for a man who enjoys strong approval ratings, clear evidence that former Vice President Cheney’s repeated challenges to his toughness and fortitude have gotten to the president.
The second speech, by contrast, was a forward-looking, courageous, and substantial accounting for how the new administration means to handle some of the toughest questions posed by American detention policy and his earlier decision to close Guantánamo Bay.
Most importantly, President Obama made clear and official for the first time — though news reports have indicated as much in the past — that he is contemplating a preventative detention statute. He rightly described how to handle “detainees at Guantánamo who cannot be prosecuted yet who pose a clear danger to the American people” as “the toughest issue we will face.” And he made clear that “If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime. . . .”
This is a statement of enormous importance, far greater importance than his decision last week to revive military commissions. While he left the details for a later date, the fact that an American president has publicly insisted both on the propriety of a preventative detention system and on the necessity of that system’s being created by Congress and overseen by the courts represents a major breakthrough.
The prior administration took the view that it could design the rules for preventative detention on its own — largely eschewing Congressional involvement and seeking to marginalize the courts. The political left and the human rights community, by contrast, pretend that preventative detention is illegitimate and that the government should not hold in custody anyone whom it cannot prosecute.
President Obama today began the process of staking out a more sensible path, one that does not claim unbridled executive authority but does insist on an executive capable of disabling the enemy.