Civil-libertarians are falling out of love with the president

AP“WE REJECT as false the choice between our safety and our ideals.” So Barack Obama declaimed in his presidential inaugural in January. On his second full day in the White House he said he would close the Guantánamo prison in Cuba within a year and stop any American from using torture or mistreatment to extract information from suspected terrorists. Civil-libertarians were thrilled. Eight months on, however, they are less so.

Michael Macleod-Ball of the American Civil Liberties Union (ACLU) admits that Mr Obama started “with a bang”. On torture, Mr Obama has been absolute: no American is now allowed to torture or mistreat a detainee. He has shut down America’s secret detention centres overseas and allowed the Red Cross to visit the non-secret ones. He still intends to close Guantánamo, though the one-year deadline is in danger of slipping. The great disappointment for the liberties lobbyists is that when Mr Obama promised to close Guantánamo he did not mean that America would stop detaining and holding suspected terrorists without trial.


Of the 200 or so remaining Guantánamo inmates, the administration considers a few score too dangerous to release. It also thinks they are impossible to try successfully in regular federal courts, either because the evidence against them (sometimes extracted by torture) is unreliable or inadmissible, or because a trial could expose intelligence sources. Like George Bush, Mr Obama intends to keep such people locked up—just not in Guantánamo. In May, however, he said he would work with Congress to find an “appropriate” legal regime to hold suspected terrorists in ways “consistent with our values and our constitution”.

It emerged last week with rather less fanfare that Mr Obama has now changed his mind. He will not ask Congress to write a new law after all. Instead, he will continue to detain suspects indefinitely by relying on the broad authorisation to use military force that Congress gave President Bush after the September 2001 attacks.

The latest flip-flop has divided the president’s critics. On one side are the civil-liberties groups, such as the ACLU and Human Rights Watch (HRW), for whom no system of prolonged detention without trial could ever be consistent with America’s values or constitution. They were aghast at the prospect of Congress enshrining such a system in law, and mildly relieved that Mr Obama has reversed himself. Kenneth Roth, HRW’s executive director (and a former prosecutor), argues that many of the detainees in question could indeed be tried successfully in a proper court. As for the few that can’t be, America’s moral credibility and ultimate success against terrorism would be best served by letting them go.

To many experts on counter-terrorism law, however, this sounds like a counsel of impossible perfection. The difficult issue, they say, is not whether such detentions should continue—they should—but what the rules should be and what rights the detainees should enjoy. And these, argues Benjamin Wittes, a senior fellow at the Brookings Institution in Washington, are the sort of complex questions that the legislative branch has a duty to settle.

Mr Wittes believes that Mr Obama was right first time, when he invited Congress to help frame a clear law. Without one, the judges hearing these habeas corpus cases have had to make up the rules as they go along. In the end, says Mr Wittes, the Supreme Court will have to adjudicate, and the final say will in practice fall on one unelected individual—Anthony Kennedy, the court’s swing judge.

But Congress itself has shown little appetite for serious lawmaking on this subject. Members who care mostly want to ensure that none of its inmates will be moved to their own district. That is one big reason why Mr Obama’s plan to close the camp is running late. And now his guiding instinct, too, appears to be safety first.