Commentary: Detention and the Constitution

At a minimum, every American should feel uncomfortable with the notion of permanent or prolonged detention without trial. Whether it's meant to apply to terrorism suspects or anyone else, even the president should not have the unrestricted power to order the confinement of someone for an indefinite period of time without appeal or due process.

As a senator and presidential candidate, Barack Obama seemed to have no problem with that proposition. A former constitutional law professor, Mr. Obama knows the Sixth Amendment's mandate that suspects in criminal trials "shall enjoy the right to a speedy and public trial . . ."

The detainees in Guantanamo have been labeled "unlawful combatants" rather than criminal suspects, but the category itself is controversial. Even if it's allowed to stand, the notion of indefinite detention violates the spirit of the Constitution, if not a constitutional mandate.

As president, however, Mr. Obama is seeing things differently. The process of closing Guantanamo, moving some or all of the detainees to the mainland and giving them due process is fraught with complications and sobering difficulties. That is why he has proposed a new legal system under which some terrorism suspects could be held in "prolonged detention," details of which have not been disclosed yet.

This would be an extreme stretch of executive authority – unless Mr. Obama can make a convincing argument that there is no other way to deal with suspects who remain a demonstrable security risk.

Such authority cannot be unlimited, however.

To read the complete editorial, visit The Miami Herald.