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Debate needed on detainees

Obama seems tempted to follow the unilateral policies of his predecessor.

By BENJAMIN WITTES and JACK GOLDSMITH

Last update: July 3, 2009 - 6:12 PM

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Soon after the Sept. 11, 2001, attacks, the Bush administration faced a fateful choice about terrorist detainees: Should it get Congress on board or go it alone? President George W. Bush bypassed the legislature and for seven years based U.S. detention policy on his own constitutional authority, on Congress' general authorization for the war against Al-Qaida and its affiliates, and on the international laws of war. Working with Congress would be hard, administration officials reasoned, and might constrain executive flexibility.

Today, President Obama faces much the same choice, and he appears sorely tempted to follow the same road.

The legal arguments for unilateralism are strong in theory; past presidents in shorter, traditional wars did not seek specific congressional input on detention. The unilateral approach lets the president define the rules in ways that are convenient for him, then dares the courts to say no.

This seductive logic, however, failed disastrously for Bush. Over time, the judiciary grew impatient with ad hoc detention procedures and began imposing novel and increasingly demanding rules on the commander in chief's traditionally broad powers to detain enemy soldiers during war.

In the short term, Obama may get away with a unilateral executive detention scheme. His prestige is high. He can dress up his plan as a narrowing of Bush's policy, since it will apply to fewer detainees and at a facility not named Guantanamo Bay.

But refusing to go to Congress still leaves inexpert and unaccountable courts to decide the details of detention policy. They will not defer forever to the notion that the government can lock up people indefinitely on the say-so of the president.

Obama can still get what he needs on detention if he works from Congress' bipartisan center, if he releases more substantial information about the detainees he thinks cannot be set free and if he speaks often -- as he did at the National Archives recently -- about the need for stable rules to govern noncriminal detentions that America cannot forswear. Presidential insistence on detention legislation will force members of Congress to take a stand and will minimize carping down the road. The process of crafting this legislation would spark a debate that would educate the country about the threat we face and would legitimate whatever policies emerge.

When Franklin D. Roosevelt sought congressional authorization for the Lend-Lease program in January 1941, the isolationist-leaning nation was evenly split over the proposal. After two months of sharp congressional argument and national debate, almost two-thirds of the country supported Lend-Lease, and Congress passed the program by large margins. "We have just now engaged in a great debate," Roosevelt proclaimed. "It was not limited to the halls of Congress. It was argued in every newspaper, on every wavelength, over every cracker barrel in all the land; and it was finally settled and decided by the American people themselves. Yes, the decisions of our democracy may be slowly arrived at. But when that decision is made, it is proclaimed not with the voice of any one man but with the voice of one hundred and thirty millions. It is binding on us all. And the world is no longer left in doubt."

Benjamin Wittes is a senior fellow at the Brookings Institution and the author of "Law and the Long War: The Future of Justice in the Age of Terror." Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the Bush administration. They wrote this article for the Washington Post.

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