President Obama wants to make it legal to “detain indefinitely,” in the Orwellian language of our time, people whom the government believes it can’t convict of crimes in our federal courts, or even before the military tribunals that have been set up to make it easier to obtain convictions. He’s seeking this extraordinary power because some people are just too dangerous not to lock up forever, even though they haven’t been—and apparently can’t be—convicted of breaking the law. “Let me repeat,” Obama declared, “I am not going to release individuals who endanger the American people.”
Forget about people who want to kill Americans. Let’s talk about people who have actually killed Americans.
This would be an amazing statement under any circumstances, but it’s especially so now, when federal law has made it easy to sentence people to long prison terms for providing “material support” to anything the United States government declares to be a terrorist organization. It’s not as if you actually have to commit an act of terrorism to be sent away to prison by our regular courts: Attending a training camp or, as in the infamous Jose Padilla case, filling out an application to attend such a camp, provides the government with plenty of legal justification for bringing extremely serious criminal charges against accused terrorists, or terrorist wannabes. So does contributing money to organizations like Hezbollah.
Thus one obvious objection to Obama’s proposal is that it’s unnecessary. But his proposed legislation—which has much of Washington swooning over what’s considered a “moderate” alternative to Dick Cheney’s authoritarian torture fantasies—is far more objectionable as a matter of the most fundamental legal and political principles.
We’ve always understood that, when it comes to giving the state power to protect us, there’s an inevitable tradeoff between security and liberty. This tradeoff is all the more complicated because the more power we give the government to protect us, the more danger we run of making the government something we will end up needing to be protected from. That is why, until very recently, the idea that you can’t put people in prison just because you believe they’re dangerous was so obvious it didn’t need to be defended. It went without saying that to imprison someone at all, let alone indefinitely, you needed to convict them of a crime. Now, apparently, this most basic of American political principles is being tossed out the window in the name of keeping us “safe.”
Apologists for this grotesque spectacle claim that terrorism represents a different and special kind of threat, which requires giving the government extraordinarily broad powers. After all, they say, we’re talking about people who want to kill Americans!
Forget about people who want to kill Americans. Let’s talk about people who have actually killed Americans: 603,731 of us, to be exact. This represents the official number of murders committed in the United States over the past 30 years (the real number, given that every murder doesn’t produce a case file, is no doubt quite a bit higher). What powers have we been willing to give the government to keep us “safe” from actual, as opposed to potential, killers?
Consider that fully one-third of these murders have never even resulted in an arrest. Furthermore, the average time served for a murder conviction in the United States is about 12 years. All of this raises an awkward question for politicians who speak of not releasing people who endanger the American public: How many murderers are free in America today, as opposed to being kept in “preventative detention”?
Although the precise number is impossible to calculate, precision in this context is irrelevant—what’s relevant is that the real number is vast. Given the known variables, we can estimate that there are at this moment somewhere on the order of 300,000 to 400,000 murderers walking America’s streets. How many of them do you suppose are foreign terrorists, as opposed to honest-to-God, homegrown, natural-born killers?
Now everyone can agree that having several hundred thousand murderers on America’s streets is an unfortunate thing. Indeed, one of the most disturbing aspects of the willingness of the Bush and Obama administrations to toss civil liberties aside in their quixotic quest to keep us perfectly safe from terrorism is that it’s difficult to imagine why tactics such as torture, rendition, and preventative detention, if they are going to be used at all, should be reserved for a handful of suspected or potential terrorists, when there are so many other dangerous groups to target.
Why not extrajudicially render Mafiosi to Third World hellholes? Why not use preventive detention on the Crips and the Bloods? Why not torture the husbands of murdered housewives until they confess? (I guarantee the percentage of husbands who are guilty in such cases is a lot higher than the percentage of actual terrorists originally incarcerated at Guantánamo.)
I hesitate to raise these suggestions, given the current enthusiasm for making a merry bonfire with the Bill of Rights in the name of “security.” It seems a lot of Americans today would prefer a far more authoritarian, hierarchical, and homogenous culture like, for example, Japan’s (murder-case clearance rate: 95 percent) than our own longstanding tradition of tolerating a certain amount of legal inefficiency in return for the benefits of living in a relatively free society.
Many of the most ardent supporters of the so-called war on terror like to remind us that, as they put it, “freedom isn’t free.” As President Obama fights to preserve many of the worst excesses of the Bush administration, the irony of such statements becomes more apparent every day.
Paul Campos is a professor of law at the University of Colorado at Boulder.