The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted—but pose a danger to the American people—we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.

This is actually in a section entitled “Strengthen the Power of Our Example.”

“As a legal matter, it is a non-outrageous statement,” says Ben Wittes, a self-identified centrist and legal expert with the Brookings Institution who has proposed a legal framework for preventive detention of suspected terrorists. “It is a very difficult political position to sustain however.” Ken Gude, a human rights and national security expert at the Center for American Progress, agrees. “Technically the government can continue to detain an individual after they’ve been acquitted in a military court, as a matter of law,” says Gude. “As a matter of policy, it’s a terrible decision.”

It doesn’t make any sense to say — as both Johnson and Assistant Attorney General David Kris did at Tuesday’s hearing — that the administration’s preferred method for adjudicating terrorism cases is prosecution in federal courts and also that any acquital could theoretically be met with a prompt detention. That’s a surefire way to destroy the credibility of the criminal justice system. Johnson, to be fair, was asked a politically difficult question: So, you guys gonna just let terrorists go after incompetent courts don’t convict ‘em? But he still waded the administration out into the perilous legal waters of endorsing show trials.

The first thing to say is that, somehow, the federal criminal justice system was capable of handling this terrorism case without detaining Warsame indefinitely. No extraordinary powers needed to be invoked. No standard of evidence needed to be reduced to secure a conviction and no baroque charges needed to be created to indict him. The competent and vigilant work of law enforcement was enough.

But there’s another question. Why bother with the supervised release? On Tuesday, Defense Department General Counsel Jeh Johnson told Sen. Mel Martinez (R-Fla.) that under the laws of war, if the government couldn’t convict a terrorist, it still retained the power to detain him after acquittal. Well, if so, what about post-conviction detentions? Warsame is a naturalized American citizen, but Johnson didn’t claim an exemption for U.S. citizens in his answer. Also, Warsame wasn’t captured on any battlefield, conventionally understood, but Johnson didn’t clarify that his perception of wartime detention authority was reserved for battlefield captures (or where the battlefield ends, for that matter). “If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, Johnson said, “that is true irrespective of what happens on the prosecution side.” Does the same hold for detentions after a prisoner serves his sentence?

Update: Adam Serwer reminds me that the Bush administration announced last year that Salim Hamdan — sentenced by a military commission to five and a half years — would again become an “enemy combatant” after his time is served. Obama eliminated the “enemy combatant” designation. What do Johnson and his Obama administration colleagues think of this?

“Continuing to detain a person indefinitely without charge or trial for a crime for which he has been acquitted is absurd and unconstitutional. If the government has sufficient evidence to warrant criminal charges against prisoners held at Guantánamo, it should file those charges and prosecute the prisoners in ordinary federal courts. But the government should not be holding prisoners indefinitely without charge or trial, and it should certainly not be holding show trials from which guilty verdicts will be honored but acquittals will be ignored. The suggestion that the government can protect the country only by disregarding the Constitution is an extremely dangerous one that should be unequivocally rejected.”

I think the President addressed the notion and the very tough issue that the administration is likely to face, and that is that we are going to have detainees that will be hard to prosecute and too dangerous to release.  And while the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people.  And this will not be pursued in that manner.

You don’t get the sharp, declarative sentence “We will not put forward an executive order on preventive detention,” but this comes fairly close. I suppose the White House could issue an executive order claiming authority for preventive detentions that doesn’t rely on inherent presidential authority — Daphne, can you help me out here? — but in the full context of the presser, Gibbs seems to be trying to shy away from the executive-order option, which is commensurate with other stuff I’m hearing from the administration.

10:31. We’re doing good things out in the world: “For the first time since 2002, we are providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan. We are investing in the 21st century military and intelligence capabilities that will allow us to stay one step ahead of a nimble enemy. We have re-energized a global non-proliferation regime to deny the world’s most dangerous people access to the world’s deadliest weapons, and launched an effort to secure all loose nuclear materials within four years…”

10:31. No security without “the power of our most fundamental values.” Like military commissions. “These are not simply words written in aging parchment…”

10:35. We are “the nation that shut down torture chambers… that is who we are.”

10:35. “Hasty decisions” by Bush, many “motivated by a sincere desire to protect the American people,” but also “fear rather than foresight… trimmed facts and evidence to fit predispositions.” Too often “we set those principles aside.” Too many of us — “politicians, journalists” — “fell silent… in other words, we went off course.” But the American people voted to “rejec[t] torture and recognize the imperative of closing the prison at Guantanamo Bay.” Need to “update our institution” with respect for the rule of law.

10:36. He’s really laying into the Bush administration. This is a red-meat speech. “the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable – a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass.” And here’s how he argues against torture:

I know some have argued that brutal methods like water-boarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence, I bear responsibility for keeping this country safe, and I reject the assertion that these are the most effective means of interrogation. What’s more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counter-terrorism efforts – they undermined them, and that is why I ended them once and for all.

He sounds animated while saying this. Again: red-meat speech. Will be interesting to see how he justifies military commissions in this context.

10:41. Closing GTMO. Only three terrorists convicted “in over seven years.” SCOTUS invalidated “the entire system.” And 525-plus detainees were released by Bush. (That red meat again.)

10:43. Keeps mentioning “the prison at Guantanamo.” So I guess the whole base — of which the detention facility is a small part — won’t be returned to Cuba…

10:45. “We’re cleaning up something that is quite simply a mess.” It’s taking too much effort from his administration. ” Uighurs! “The court order to release seventeen Uighur detainees took place last fall — when George Bush was President. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican Presidents. ” Not “wild-eyed liberals.”

10:46. “It is my responsibility to solve the problem.” Can’t delay, the courts won’t allow it. “And neither should our conscience.” Politicization of these issues is running high. “I have no interest spending my time relitigating problems of the last eight years.” Well, you’ve done that for 20 minutes at least… The debate is “calculated to scare people.” Did one of my liberal-blogger friends write this speech?

10:48. He’s sick of this GOP line that he’s going to let terrorists go free and Khalid Shaikh Mohammed is going to be your neighbor:

Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders – highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal “supermax” prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: “The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational.”

10:49. Blames Bush’s “poorly planned haphazard approach” that let detainees “return” –arg, that word again — “to the battlefield.”

10:50. Federal trials for GTMO detainees whenever “possible.” “Our citizens are tough enough to convict terrorists.” Shorter Obama: you deride federal courts’ capabilities to convict terrorists, you insult the American people.

10:52. Military commissions. “A history … dating back to George Washington.” For violators of the laws of war. So how to distinguish between the two cases? “For the presentation of evidence gathered from the battlefield that cannot be effectively presented in federal Courts.” Only voted against the 2006 Military Commissions Act because it didn’t provide enough process. Spending a lot of time saying that he’s not a hypocrite.

My Administration is bringing our Commissions in line with the rule of law. The rule will no longer permit us to use as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify.

10:54. Some detainees are ordered released by the courts. “Nothing to do with my decision to close Guantanamo… the courts have spoken.” No legit reason to hold 21 detainees. “I too am bound by the law.”

10:56. The hard cases: those who can’t be prosecuted. “Exhaust every avenue” to prosecute. “But there may be a number of people who can’t prosecute people for past crimes, in some cases because evidence may be tainted.” Like through torture. Basically, the high-value detainees. “People who in effect remain at war with the United States.” Won’t be released. But “these detention policies cannot be unbounded.” So the administration is creating a new category of procedure. Are these Neal Katyal’s national-security courts?

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.

The goal is “a legitimate legal framework.” How is this different than the ad-hoc framework that he denounced from the Bush administration? Because it’s more… deliberate? What?

10:59. “These are issues that are fodder for 30-second commercials.” Be not afraid, Democrats! If don’t deal, “they’ll be an albatross” around the U.S.’s neck. American people will reject fear. “I am not the only person in this city who swore an oath to protect the U.S. Constitution.”

11:00. Speaking broadly. Democracy “depends on transparency.” But some information has to be classified. “Information we have about a terrorist organization and its affiliates… lives are at stake.” Released memos by the OLC “not because I disagreed with enhanced interrogation techniques or… their legal rationales.” But because “it was already widely known and I had already banned those methods.” We will not “be interrogating detainees using that approach.”

But the torture photographs are different. Those troops in the photos were investigated. “No debate…. over whether it’s wrong.” But “was my judgment… releasing those photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war.”In short, there is a clear and compelling reason to not release these particular photos.” Nothing would be gained that outweighs the cost. The press considers it contradictory. In each case had to strike a balance.

11:04. “Accountability”? Nothing about commissions or investigations of the torture or detention apparatus of the Bush administration. He says he’ll “insist” on “oversight” of his actions by Congress. “Someone must always watch over the watchers.” Hurm.

11:06. State secrets privilege. He’s concerned “it’s overused.” Principle: don’t protect information because it conceals wrongdoing or illegality or embarrassment. He’ll “apply a stricter legal test.” Won’t assert it in court without “first following a formal process, including review by a Justice Department committee and the personal approval of the Attorney General.”

11:09. He’s said “enhanced interrogation techniques” a lot, instead of “torture.” You’d probably have to prosecute “torture.”

11:11. Versus Cheney. Some want to “re-fight debates that have been settled” including “some they have lost.” Versus liberals: he opposes a commission to investigate torture and detention decisions. “That kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort, and our politics on the challenges of the future.” If only we were all as nuanced as Obama!

11:14: “I can say without exception or equivocation that we do not torture, and that we will vigorously protect our people while forging a strong and durable framework that allows us to fight terrorism while abiding by the rule of law. Make no mistake: if we fail to turn the page on the approach that was taken over the past several years, then I will not be able to say that as President. And if we cannot stand for those core values, then we are not keeping faith with the documents that are enshrined in this hall.” So you can violate the constitution and only be held accountable politically, not legally, then.

11:16: Another parting shot at Dick Cheney and the Bush administration. “Every now and then, there are those who think that America’s safety and success requires us to walk away from the sacred principles enshrined in this building. We hear such voices today. But the American people have resisted that temptation.”

11:17: Fadeout is another call for national unity. “We can and will defeat al-Qaeda.” Never be able to do that “if we stay true to who we are… anchored in our timeless ideals. This must be our common purpose.”

–

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Music fan and CIA Director Mike Hayden released this statement to the agency in the wake of President Obama’s interrogations/detentions cataclysm:

President Obama issued an Executive Order today setting out new instructions for the detention, rendition and interrogation of captured terrorists. The legal and policy landscape under which the Agency has conducted itself in the global war on terror has changed in the past and we have consistently and scrupulously adjusted our efforts to reflect these changes. This Executive Order is no different. We will review the order carefully and issue appropriate guidance to ensure that we continue to act in consonance with the law and with policy direction. When our government changes its law or policy, we will follow that direction without exception, carve-out, or loophole.

Our Agency has many counter-terror tools in its arsenal. The rendition, detention and interrogation program has been an important one. As intelligence professionals, you, the men and women of CIA, will make the best possible use of the space the Republic has given us to act boldly and bravely in its defense. I have every confidence in your enduring ability to do so, honoring, as always, the laws and values of the democracy we faithfully serve.