Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
In other words, people who have committed no crime which can be proved in a court of law, including the crime of conspiracy, will be held indefinitely without a trial. Note that Obama wants to use military commissions to try some detainees, which means that these detainees can’t be found guilty of anything even under military law. This is tantamount to punishment for a thought crime. It is also strikingly similar to the rationale used by the Bush Administration.
And, Obama said something else which is nothing more than a continuation of Bush Administration excuses:
In the midst of all these challenges, however, my single most important responsibility as President is to keep the American people safe. That is the first thing that I think about when I wake up in the morning. It is the last thing that I think about when I go to sleep at night.
Now, this is simply wrong. Here’s the Presidential oath of office, as enumerated in the Constitution:
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Nothing about the most important duty being to keep Americans safe. The first duty is to preserve, protect and defend the Constitution. What’s the Constitution have to say about punishing people without a trial? Well, the Fifth Amendment says:
No person shall be deprived of life, liberty or property without due process of law.
In other words, you get a trial. What about the idea that civilian courts shouldn’t have jurisdiction?
The privilege of the writ habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.
Note that America is not invaded, and it is not in the throes of a rebellion. Heck, this isn’t even just violating the Constitution, it doesn’t even match up to the Magna Carta, a document 800 years old:
No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, not will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.
Which is to say, you can’t be punished without being convicted by a jury of your peers. The danger here with Obama is, in certain respects, worse than that of the Bush Administration. Bush certainly wrapped his actions in the flag, but less so in the Constitution. The phrase "the Constitution is not a suicide pact" implicitly admitted that what was being done didn’t meet a strict interpretation of the Constitution, but hey, they couldn’t have really meant those words for "bad people". Obama instead implicitly claims to come to praise and protect the Constitution, not to bury it:
Fidelity to our values is the reason why the United States of America grew from a small string of colonies under the writ of an empire to the strongest nation in the world.
Having said that, he then wants to do things which go explicitly against the values in the Constitution. If those aren’t American values, then I certainly don’t know what are. America was born in a fight against tyranny. The idea of the executive being able to hold people indefinitely without trial is inherently despotic and destructive of liberty. The only way to determine guilt is with a trial. As Benjamin Franklin (who knew a thing or two about American values) said, it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer. Ben Franklin also said something else, which has been quoted a great deal in the last eight years, for good reason:
Any society that would give up a little liberty to gain a little security will deserve neither and lose both.
The idea that safety can be purchased by giving up liberty is simply wrong. Americans have much more to fear from a President who can lock up folks indefinitely without a trial than they do from al-Qaeda. Republicans, think about a Democrat able to do it. Democrats, think about the next Bush (and there will be one) able to do that. In terms of foreign policy, America’s great strength, as Obama explicitly recognized, was its values. Those values gave America moral authority and made other countries feel that America was in the right. An America which holds people without trial, which violates the right of habeas corpus and which violates its own constitutional values is no beacon to the world and cannot effectively argue for its own values. Such an America is just another self-interested power player, little different from any other. Obama is certainly the master rhetorician he has been acclaimed. He has wrapped an essentially un-American policy in American values, and used the same rationale as George W. Bush, that he has to take away a little liberty, in order to give Americans a little more safety. And perhaps he has a point. Perhaps some of the prisoners, if released, will go back and take up terrorist activities again. Let us assume, for the point of argument, that they will. Does that mean that we punish them for crimes they have yet to commit? Does that mean we assume that we know that all of those chosen by Obama to be punished will commit crimes? Does that meant that it is not better that 100 guilty men go free rather than one innocent man be falsely imprisoned? And where do we draw the line? Once we’ve decided that thought crimes are worthy of preventative punishment, once that is a principle embedded in the law, who else are we going to lock up whom we can’t prove has committed a crime, not even that of conspiracy, because we think they may commit one in the future? That’s not a power any human being should have over another. But it is the power Obama has demanded, has arrogated to himself, just as George Bush does. If that isn’t against American values, then at long last, I don’t know what American values are. But I think it is clearly anti-American, and I think all those who have said "give me liberty or give me death", or similar phrases, recognize in their hearts that what was done under Bush and what Obama is attempting to do are fundamental violations of the values that made America what it is.