The firestorm of criticism over the trial of Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, should not obscure a darker truth: Trial is only one prong of Obama's Guantanamo strategy. Some of the Guantanamo prisoners, including those who have been detained for seven or eight years, will remain imprisoned indefinitely with no prospects of ever seeing the inside of a courtroom. Obama's much-lauded intention to close Guantanamo will not change the fate of these prisoners, who will be transferred to other prisons in the United States or abroad, and as a result, the president will perpetuate one of the most troubling policies of the Bush administration. If Obama does not repudiate this policy, it will define what the government can do in the future.
Imprisonment without trial is an affront to the Constitution and is at odds with Obama's proclaimed commitment to be faithful to the rule of law and to fight terrorism within the terms of the Constitution. At issue is nothing less than one of the core values of our constitutional system—the principle of freedom. That principle is enshrined in our political traditions and stands as one of our greatest achievements as a nation. It is rooted in the Fifth Amendment's requirement that the liberty of no person shall be denied without due process of law. This provision of the Bill of Rights, along with the guarantee against the suspension of the writ of habeas corpus, denies the government the power to incarcerate anyone who had not been charged with a crime and swiftly brought to trial.
At its heart, the principle of freedom seeks to ensure that only those who have committed a crime are denied their liberty. To that end, the principle mandates a trial with time-tested procedures designed to protect the innocent and arrive at the truth of the charge against him. These procedures, which require the government to prove its case in open court and allow the accused to defend himself, reflect the government's commitments to fairness and are a source of its legitimacy.
The principle of freedom has exceptions, but they are very few in number and should be strictly construed. War is one of these exceptions. The power to wage war, fully recognized by the Constitution, allows the United States to kill enemy soldiers on the battlefield and to capture and imprison them for the duration of the hostilities. This exception was pushed to new limits by President Bush, who not only claimed that the fight against al-Qaida after 9/11 was a war but also asserted that he had virtually unlimited power to try or to imprison those he believed to be al-Qaida's agents. By continuing to detain some of the Guantanamo prisoners without placing them on trial, President Obama is in effect claiming this same power.
Although President Obama has repeatedly claimed that we are at war with al-Qaida, he has not sufficiently recognized that it is no ordinary war. Al-Qaida is not a nation-state confined to some discrete geographic area, but rather a far-flung international organization that operates in secret. Our battle against al-Qaida has no end in sight—even if Bin Laden is captured, there will remain many terrorist units throughout the world capable of acting without his direction. Just as it is unthinkable to treat every place on earth where al-Qaida fighters might be found as a battlefield, it would be unthinkable to allow the government to hold al-Qaida suspects until the war between that organization and the United States has concluded. Allowing the government this power would expand the war exception to the principle of freedom so as to swallow the principle itself and defeat its underlying values. It would mean the president could decide when and where the principle of freedom should apply virtually without constraint.
As a matter of circumstance, the Obama detention policy applies only to foreign nationals, since there are no Americans detained at Guantanamo, but the threat to the principle of freedom applies with no less force. The Constitution's Due Process Clause, the primary source of the principle, by its very terms protects the liberty of any person. It should be read as defining the authority of United States officials wherever they act and against whomever they act. In fact, the Supreme Court's most recent ruling on Guantanamo, Boumediene v. Bush, correctly recognized that the Guantanamo prisoners are not beyond the reach of the Constitution. In that decision, the court denied Congress the power to deprive these prisoners the right to habeas corpus and, in so doing, implied that the prisoners possessed other constitutional rights. While the court did not specify what those rights might be, they presumably include rock-bottom constitutional rights—not just the right against torture, but also the right to personal liberty.