Since Obama's inauguration, the American Civil Liberties Union has been one of his most consistent critics. At every turn, the ACLU has challenged policies that it see as circumventing Constitutional protections. Anthony Romero, the organization's executive director, shares his thoughts regarding the Barack Obama's speech on Guantanamo yesterday. He also discusses the president's proposed changes to national security policy, the difference between the current and prior administration, and the ACLU's plan to challenge some of Obama's stated policies through the court system.
What do you make of President Obama's reaching out to human rights groups before announcing these changes?
It was a welcome gesture, a marked departure from the last president. [But] at the end of the day, I think no one in the room changed their opinion on any one particular issue or policy. It would have been preferable to have a more open dialogue before decisions had been made on the military commissions and launching a new preventative detention regime.
Were you assuaged at all by the president's explanation for reinstating the military commissions?
No. It really is an enormous mistake to continue with the failed military commissions. The mistake that George Bush made in trying to jury rig a legal system and create a new one from whole cloth appears to be the same mistake that President Obama is intent on making. These military commissions will never render justice. Because of their failed work over the last eight years, they are essentially radioactive, they lack any credibility. Obama's efforts to make them a little more just, provide a little bit more due process, and make them a little less offensive, is not going to carry the ball at the end of the day.
Do you intend to challenge the president's preventive detention policy in court?
Yes. The stated need for a new statutory regime, enacted by Congress and signed by any president that would allow the government to indefinitely detain individuals without charge is a momentous departure from American jurisprudence. Under established American law, we have to charge, convict, then detain, and if a conviction is not received we must release. We have never allowed that system to be tampered with in any significant way. And to now propose a lawful strategy for securing the same indefinite detention powers as George Bush is completely wrongheaded. He might get the process right, but the outcome will be the same.
I understand you're also planning to challenge the constitutionality of the military commissions. Do you have any cases you're preparing in which that might be possible?
We have clients already who will either be moved to the Article III courts or some of them will stay in the military commissions. We're waiting to see which individual determination the government will make in terms of who gets charged where. .
How confident are you about being able to force changes in these policies through the courts?
We're confident. The questions around unlawful enemy combatants, the questions around Hamdi and Jose Padilla, go very much to the heart of whether you can detain someone indefinitely without charge. If we were able to do so with a Republican president who was much more willing to usurp power from Congress, I think we're in a much better position than we have been for the last eight years. There are many in the president's own party that are going to balk at allowing this enormous leap over the American legal system. You just don't to hold someone indefinitely without charge.
How do you respond to the president's argument that we need a new legal system for trying some terrorists even as he moves Ahmed Khalfan Ghailani [who allegedly assisted with the 1998 bombings in Tanzania] to a federal court system in New York where he's going to be tried?
The fact is we have succeeded in some of the most high profile significant terrorism cases in prosecuting, convicting and imprisoning people through federal court. I think what doesn't compute is that [the administration] hasn't tried to charge these cases in federal criminal court -- we haven't given it a fair shot. It's the prediction of failure as a justification for new policy that is just untenable.
What do you think of the the president's assertion that there are people we have to detain, but can't convict either in military commissions or federal courts?
I don't believe that's the case. I think the proliferation of laws enacted after September 11th give the government a remarkable array of law enforcement tools to use in prosecuting individuals. And if the government after eight years of work, with all of its vast resources [and] agencies working together, has not been able to render evidence that would reliably stand up in court to convict someone, then they did something wrong. And that means individuals who are not convicted must be released. The biggest mistake would be to tinker with the American legal system in an effort to hang on to 20 or 30 individuals that can't be processed. Guilty people walk every day in American criminal courts because the system breaks down, or prosecutors fail to have the evidence, or law enforcement officials bend the rules in those prosecutions. That doesn't make us less safe, it makes us stronger as a country when we adhere to legal principle, and a system of rules that are not changed for a preordained outcome.
What about people we've captured whom we don't have hard evidence to convict, but who say they believe in what Al Qaeda and Osama bin Laden are doing?
They should walk. Just because you say you're supportive of al Qaeda, or you want to tear down America, doesn't mean you've shown the criminal intent or the criminal ability to do so. Statements like "I support al Qaeda" or "I support bin Laden" are protected speech under the first amendment. If we start locking people up because of what they say and not because of what they've done, then we're in a very different democracy.
Jack Goldsmith, who was a lawyer for the Office of Legal Counsel during the Bush administration, suggested that there was very little practical difference between the Obama administration and the Bush administration on anti-terrorism policy other than a consciousness of public opinion. Did you hear anything that you found reassuring in Obama's speech yesterday?
Yes. I think what's meaningfully different between the dueling speeches of President Obama and former Vice President Cheney is that we recognize torture has occurred. That torture is wrong and it was not an effective way to deal with the interrogation needs of the government. The second difference between Obama and Cheney is that the president has shown a willingness to have greater scrutiny and subject himself to greater control of Congress and the courts. It's not the same old unitary executive arguments that we're heard from Bush and Cheney.
That being said, the manner in which he's going around executing these changes in policy, while more in keeping with checks and balances, the outcomes are likely to be the same. That is very much akin to the Bush policy. [There still exists] the question of being able to detain someone indefinitely without charge because we fear they represent a risk to the country, not because we have any proof or evidence of wrongdoing.
While we have someone who is much more cognizant and respectful of the systems in which to pursue these policies, the end result of the actual policies will actually be identical. I think it's telling that the people most supportive of these policies are the people who have criticized him for the last two years.
