***We didn't present last night's opening story as a Talk Me Down segment but given the amount of reaction it has received it seems fitting to offer it for discussion. Here's the opening to the interview with Vincent Warren, executive director for the Center of Constitutional Rights, with just a few edits:
President Obama actually delivered two speeches yesterday. One speech that could have been billed as a ballad to the Constitution -- a proclamation of American values, a repudiation of the lawless behavior of the last administration. And another speech -- announcing a radical new claim of presidential power that is not afforded by the Constitution and that has never been attempted in American history, even by George W. Bush and Dick Cheney.
Remarkably, President Obama made both of those speeches simultaneously. Standing inside the National Archives, in front of the actual, original Constitution, President Obama delivered a blistering critique of the Bush administration -- in which he called their legacy literally a mess.
Our government made a series of hasty decisions. Poorly planned, haphazard approach. Too often, we set
those principle as side as luxuries that we could no longer afford. Our government made decisions based on fear rather than foresight. The
decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor
An ad hoc legal approach for fighting terrorism that was neither effective nor sustainable. Ouch!
Then, moments later, he announced his own -- his own ad hoc legal approach for fighting terrorism. President Obama proposed something
new -- something called prolonged detention. Doesn't sound that bad, right? Prolonged detention.
Did you ever see the movie "Minority Report"? It was based on a Phillip K. Dick short story. It came out in 2002. It starred Tom Cruise, remember? He played a police officer in something called the "Department of Pre-Crime." Pre-Crime is where people are arrested and incarcerated to prevent crimes that they have not yet committed.
You didn`t do anything, but you`re going to. Future murder. Creepy, right? Putting somebody in jail not for what they have done but
for what you`re very sure they`re going to do?
There may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who
nonetheless pose a threat to the security of the United States.
We`re not prosecuting them for past crimes, but we need to keep them in prison because of our expectation of their future crimes.
Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war --
must be prevented from attacking us again.
Prevented. We will incarcerate people preventively -- preventive incarceration. Indefinite detention without trial. That`s what -- that`s what this is. That`s what President Obama proposed today if you strip away the euphemisms.
One civil liberties advocate told "The New York Times" today, quote, "We`ve known this was on the horizon for many years, but we were able to hold it off with George Bush. The idea that we might find ourselves fighting with the Obama administration over these powers is really stunning."
And it is stunning. Particularly to hear President Obama claim the power to keep people in prison indefinitely with no charges against them, no conviction, no sentence, just imprisonment -- it`s particularly stunning to hear him make that claim in the middle of a speech that was all about the rule of law.
But we must do so with an abiding confidence in the rule of law. Our government was defending positions that undermine the rule of law. To ensure that they are in law with the rule of law.
How can a president speak the kind of poetry that President Obama does about the rule of law and call for the power to indefinitely, preventively imprison people because they might commit crimes in the future? How can those two things co-exist in the same man, even in the same speech?
Well, that brings us to the self-consciously awkward, embarrassing part of this speech today. After condemning the Bush administration for what he called their ad hoc legal strategy for trying to make things seem legal that patently weren`t, this is what President Obama proposed.
My administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall into this category. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
Our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.
And so going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
You`ll construct a legal regime to make indefinite detention legal. You will -- what did he say? -- develop an appropriate legal regime. So you can construct a whole new system outside the courts, even outside the military commissions, so that you can indefinitely imprison people without charges and you`ll build that system from scratch. What`s that somebody said about ad hoc legal strategies?
Just for context here, in the United Kingdom, where there isn`t even a Bill of Rights, there`s been a major debate about whether people can be held in preventive detention. Former British Prime Minister Tony Blair wanted three months to be the outer limit for how long anyone could be held. There was a big political fight about it. Parliament ended up limiting that power to 28 days. Twenty-eight days is still the longest period of preventive detention that`s allowed under law in any comparable democracy any where in the world.
How long would President Obama`s proposed preventive, indefinite detention last? Well, he`s not saying yet, but here`s how he defines the threat that he says makes indefinite detention necessary.
Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now -- and in all probability -- 10 years from now.
Ten years from now. So, you could get arrested today and locked up without a trial, without being convicted, without being sentenced for, say, 10 years -- until the threat of your future criminal behavior passes? "Prolonged detention," he`s calling it.
This is a beautiful speech from President Obama today, with patriotic, moving, even poetic language about the rule of law and the Constitution -- and one of the most radical proposals for defying the Constitution that we have ever heard made to the American people.
As you can tell, I`m having a hard time disguising my own feelings about this prolonged detention announcement today. How do you see it? Do you actually see this as a radical proposal?