The Washington Post, September 29, 2009
President Obama’s decision not to go to Congress for help in establishing reasonable standards for the continued detention of Guantanamo detainees is a failure of leadership in the project of putting American law on a sound basis for a long-term confrontation with terrorism. It is bad for the country, for national security and for civil liberties. It represents a virtually wholesale adoption of the failed policies of his predecessor — who, with equal obtuseness, refused to root American detention practices in clear law approved by the legislature and similarly failed to learn from repeated Supreme Court rebukes to this unilateral approach. It violates Obama’s much-noted statement this spring that he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.” And it delegates a profound and difficult policymaking exercise to the judiciary and, ultimately, to a single man on the Supreme Court.
The only point in Obama’s defense is that few political actors have given him reason to think he would have responsible partners if he did the right thing. Human rights and civil liberties activists are so keen to avoid legitimizing detention in legislation that they have treated as a victory the president’s decision to adopt the very policy they have spent the past eight years denouncing.
Congress is not looking statesmanlike either. Republicans have been too busy making political hay out of Obama’s sputtering closure of Guantanamo to act as constructive participants in this important legislative project. Democrats, always afraid of their shadows on national security issues, have hidden behind civil liberties platitudes that most do not really believe. Members across the spectrum have acted boldly only when it comes to making sure that no Guantanamo detainees end up in their districts.
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Benjamin Wittes 