Will Obama violate the spirit of the Fourth?
He has bought into the Bush-era detention of terror suspects with no trial. That won't keep America safe.
The former constitutional scholar had called for terror suspects at Guantánamo to be put on trial or let go. Denying them the rule of law only helped Al Qaeda gain support among Muslims and recruit new terrorists, thus endangering Americans. The nation is safest, he had asserted, when it lives up to its civic values of liberty and justice.
But then US security chiefs told the young president that many of the 229 detainees at Guantánamo would be difficult to prosecute for lack of legal evidence. And intelligence officers are near-certain they would be too dangerous to release. Just as President Bush did after 9/11, they advise, he should indefinitely detain them – as well as many future suspects captured in foreign lands.
Hearing that, President Obama then bought into "preventive detention."
In a May speech on Guantánamo, he admitted that this is "the toughest issue we will face." He set up a team to design new authority, hoping to win a law from Congress that would make sure all three branches of government are involved in responsibility for such detentions.
The team's proposal is due any day.
But Obama is reportedly leaning toward simply issuing an executive order that would let him define the potential "dangerousness" of a suspect – based simply on secret US intelligence. That would be the basis for indefinite detention – perhaps with court review every six months.
Some legal experts claim, as Mr. Bush did, that the president can take such a step under international rules of war, laws passed by Congress after 9/11, and a 2006 Supreme Court ruling that anyone fighting for the Taliban in Afghanistan could be detained "indefinitely, without trial and on domestic soil."
Other experts say broader and more certain authority is still needed to remove ambiguities on where the United States stands with such a wartime power. Not all captured suspects are Taliban. And in fact, there is little clarity on who is an "enemy fighter" among Islamists based on their level of involvement in terror-related activities. Obama's executive order would probably face many challenges in court, as Bush's did, and it would only continue the legal uncertainty.
Still others say only civilian courts should decide the future of detainees. This would preserve liberties such as habeas corpus that are basic to democracy – and might inspire Muslims living under authoritarian regimes. And criticism of the US in Europe and in Arab media (that aids Al Qaeda) might diminish.
Obama needs to return to the civic high road. Even if Congress is very busy with a domestic agenda and is resistant to bringing Guantánamo detainees to US soil for legal determination, this president must use his political strength to persuade lawmakers to take the right step.
As Supreme Court Justice Anthony Kennedy wrote in a recent opinion, the president should not be allowed to "switch the Constitution on or off at will."
There are risks for all Americans that real terrorists will be released by a civilian judge. Even Bush released a number of detainees who returned to killing Americans.
As Obama celebrates his first Fourth of July as president, he must live by his own words that Americans "cannot keep this country safe unless we enlist the power of our most fundamental values" embodied in the Declaration of Independence, the Constitution, and the Bill of Rights.
Those ideals, as he said at his inaugural, still light the world, and cannot be given up "for expedience's sake."