If the ‘War on Terror’ Is Over, So Is the Right to Preventive Detention

Writing about the role Deputy National Security Adviser John Brennan played in the Bush counterterror surveillance program, Marcy Wheeler, blogging for Glenn Greenwald at Salon today, argues that as NSA adviser, rather than CIA director (a position Brennan was nominated for, but Glenn helped torpedo the nomination by highlighting his previous role in the Bush administration), Brennan is pushing Obama toward an ineffective and abusive surveillance strategy that ignores civil liberties.

That may be true, but there’s an aspect of one of Brennan’s recent speeches that, if actually implemented, would have the opposite effect.

As Spencer Ackerman reported here earlier, Brennan, in his speech to the Center for Strategic and International Studies, declared an end to the “war on terror.”

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

That power to detain supposedly “dangerous” people who can’t be proven guilty in any sort of court is a power the Bush administration relied on heavily and the Obama administration continues to claim. It’s at the core of President Obama’s claim that there’s a class of people who cannot be tried in criminal court or even by military commission, yet still must be held in prison because they’re “dangerous.” That’s all been justified legally by saying that we’re at “war,” and terror suspects are warriors in the “war on terror.”

Now that the Brennan has declared an end to that war, is the Obama administration willing to relinquish its right to detain terror suspects picked up anywhere in the world?

So far, Obama has not made clear how he intends to use this “preventive detention” authority he claims that he has, though it’s as broad a detention authority as Bush Attorney General Michael Mukasey claimed over a year ago. But if Brennan really has the sway over the administration that Wheeler suggests he does, then maybe Obama will soon have to concede that the “war on terror” is over — and so is his corresponding power to seize and imprison its supposed “warriors” anywhere in the world.