Adam mentions this in his informed analysis, but I want to draw extra attention to the portion of the speech that left me hanging: The discussion of detainees who are considered both impossible to prosecute and too dangerous to release.
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.
As I said, I am not going to release individuals who endanger the American people. 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. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
We definitely need new standards. But the impression I get from the speech is that if we can't find ways to prosecute these dangerous people -- and "can't prosecute" means is that we can't legally prove they are actually dangerous -- they'll remain in jail indefinitely with no recourse. It is, as Adam writes, a dangerous precedent. But in all honesty I can't imagine that Obama, or any other president, would make a different choice.
-- Tim Fernholz