Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here — this is the toughest single issue that we will face. We’re 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, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or 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.
Let me repeat: 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. Having said that, we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why 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 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.
This is just the “open source” version of Bush and Cheney’s policy — an illegal and unconstitutional government practice with some meaningless “checks and balances” grafted onto it. It moves us beyond the idea that the president is a monarch, but only to leap into a more democratized form of illegality.
The problem was never merely that the president was acting alone; the problem was that the president was acting alone and in violation of the law — and hundreds of years of jurisprudence. A pretty significant difference.
How can you imprison people for thought crimes? If the evidence you have is “tainted” (since it was gotten through torture) and will not hold up in a legitimate court of law you have to let them go. Blame the Bush administration for destroying all hope of trying these individuals in a legitimate legal framework. But you still have to release them. And yes, that might endanger us. It might make us less safe. But so does violating the foundational priciples that guarantee our liberty. For a laudible speech that argued we must return to our nation’s first principles, this idea is a gigantic detour.