Obama's Department of Pre-Crime

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The Obama presidency has been filled with disappointments already, but the biggest and most dramatic may be his reversal on basic questions of morality and law. Most recently, this has involved his proposal to detain people indefinitely on the suspicion that they may pose some sort of "national security" threat but without any trial before an impartial judge or jury. President Bush was already trying to do this, but Barack Obama is taking the entire situation a couple of steps further along by institutionalizing it.

There are, admittedly, people currently in U.S. custody who can't be prosecuted for past crimes because the Bush administration made such a mess of things — detaining them without counsel or trial, torturing them, and so forth. Under a just system of laws, they would have to be released even if they are a likely threat, but Barack Obama doesn't believe in the principle of law enough to do that. Instead, he intends to construct a "system" or "legal regime" in which preventative detention becomes a standard for people who can't be tried but who are suspected of being a threat some time in the future — in effect, a "legal regime" of "precrime" where people are imprisoned for crimes they haven't committed yet.

Obama refuses to call this "preventative detention" even though that's clearly what this is, which suggests that he knows how immoral his proposal is and how it would be received if he labeled it honestly. What's more, his use of the term "legal regime" demonstrates that he knows his proposal lies outside the current system of courts, the current legal system, and even outside the system of military courts. So he knows that he is proposing the creation of an entirely new system which can't be held to any of the legal standards and restrictions which we are currently used to.

There are no upper limits being proposed for how long the United States can detain people without criminal charges, without trial, and without judicial oversight. This proposed system isn't just being limited to a few hardcore terrorists currently in American custody and it isn't even being limited to non-citizens. So, just as under Bush, the possibility is left open for American citizens to be detained by the government and kept imprisoned indefinitely without charges or trial.

It's not legitimate to say that we'll "only have trials if the defendant won't win," which is basically what Obama's proposal amounts to: people who will win because of how they have been treated will just be kept in jail without being put on trial. The principle of the rule of law isn't one you can uphold just a little bit and only when it's convenient — holding to principles "a little bit" ultimately means that you have little in the way of principles. Being a principled person means that you hold to your principles even when they lead to inconvenient or distasteful consequences.

To add insult to injury, Barack Obama made these proposals at the same time he admitted that the Bush administration made such a mess of things and condemned their handling of detainees. It appears that he hoped he could get away with institutionalizing Bush's mess if he condemned it at the same time, as if people would only notice the criticisms which they agreed with but wouldn't notice the ways in which Obama is trying to make that mess even worse. George W. Bush created an American Gulag system but left it an ad hoc system with little structure; Obama wants to systematize it and make it permanent, giving it a facade of legitimacy which it doesn't deserve.

Will Barack Obama get away with this attempt to destroy the rule of law? It's very possible because there are far too many people willing to give him the benefit of the doubt simply because they like him personally — they think that it's OK to trust him with unconstitutional powers that they wouldn't have trusted Bush with. Justice Louis D. Brandeis's wrote about just this sort of problem in his 1928 dissent Olmstead v. United States: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Would it be distasteful and unpopular if some of people currently detained by the government were acquitted in a trial and had to be let go? Absolutely. Should they be put on trial anyway? Probably — it might be the only way to ensure that all the details of their illegal detention and treatment come out. However unpopular such a legal outcome might be, the blame would lie squarely with all those in the Bush administration who made a successful trial impossible. If a murderer goes free because of police misconduct, the blame falls with the police and not the judge who follows the law or the legal system which protects us all.