Little word from U.S. on Nyi Nyi Aung, jailed in Burma

Image by totaloutnow via Flickr

By Glenn Kessler
Washington Post Staff Writer
Thursday, December 24, 2009; A07

After his arrest in September, the American was held for 17 days in a dank Burmese jail and denied food, medical treatment, sleep and the chance to speak with a U.S. government official. Even after he finally met with a representative from the U.S. Embassy, the American was transferred to solitary confinement in a cell for military dogs.

But the harsh treatment on what advocates say are trumped up charges has barely merited a peep from the Obama administration.

Nyi Nyi Aung, a Montgomery Village resident and Burmese democracy advocate who has traveled there often, appears to be politically inconvenient for both the United States and the Burmese military dictatorship at a moment when the two countries have taken tentative steps toward engagement after years of stormy antagonism.

"It is shocking to me that an American citizen has been treated this way and higher U.S. officials are silent on that," said Wa Wa Kyaw, Nyi Nyi's fiancee and also a U.S. citizen and Maryland resident. "It will let the generals think, 'We can do whatever we want, even torture and inhumane treatment of a U.S. citizen,' because America wants to do the engagement policy."

In one apparent concession to American sensitivities, the Burmese government in October abruptly dropped charges of instigating unrest in concert with pro-democracy groups. Instead, it accused Nyi Nyi of purely criminal acts -- allegedly possessing a forged Burmese identification document and failing to declare U.S. currency totaling more than $2,000. His lawyers say he is innocent of both offenses; they note that he appears to have been seized by authorities before he even made it through customs, where he would have had to declare the currency.

Officials at the Burmese Embassy in Washington did not respond to a request for comment.

Burma, also known as Myanmar, is regarded as one of the world's most oppressive nations, ruled by generals who have enriched themselves while much of the country remains desperately poor. The National League for Democracy, the party of Nobel Peace Prize laureate Aung San Suu Kyi, won a landslide electoral victory in 1990, but the military leadership refused to accept it. Since then, she has been under house arrest for most of the time, as have hundreds of her supporters.

The 40-year-old Nyi Nyi was one of the leading organizers of demonstrations against the junta in 1988 and fled the country after a violent crackdown, eventually settling in the United States as a political refugee in 1993. He became a U.S. citizen in 2002 and earned a college degree in computer science, but he also remained deeply involved in Burmese democracy efforts.

Wa Wa said that her fiancee managed to often travel to Burma to visit his family and work with the Burmese underground because his U.S. passport is in his legal name, Kyaw Zaw Lwin. In his professional and personal lives in the United States, he has used Nyi Nyi Aung -- an amalgam of a childhood nickname and his father's first name -- and for years the Burmese government never made the connection.

But last summer Nyi Nyi's profile was raised when he helped deliver a petition to senior United Nations officials with 680,000 signatures calling for the release of all political prisoners in Burma.

Wa Wa, who has lived with Nyi Nyi since 2005, also has secretly traveled back to Burma even though she is a political refugee. "We have taken the risk because we want to organize and train the new generation for democracy and freedom," she said.

Nyi Nyi's mother and sister are serving prison sentences of five years and 65 years, respectively, for their involvement in 2007 anti-government demonstrations known as the "Saffron Revolution." Wa Wa said that he tried to enter the country again in part to see his ailing mother. But he appears to have been seized as soon as he landed at the airport in September.

Nyi Nyi's treatment in prison has attracted worldwide attention, with both Human Rights Watch and Amnesty International issuing statements on his case. Fifty-three members of the House of Representatives, including House Foreign Affairs Committee Chairman Howard L. Berman (D-Calif.), sent a letter last week to Senior Gen. Than Shwe calling for Nyi Nyi's immediate release and return to the United States.

On Nov. 6, Sen. Barbara Milkulski (D-Md.) sent Wa Wa a letter saying she had asked Secretary of State Hillary Rodham Clinton to condemn the detention in the "strongest terms possible." But Clinton -- who over the summer called for the release of another American, John Yettaw -- has been silent. Yettaw, who was tried for entering Aung San Suu Kyi's compound, eventually was freed through the intervention of Sen. James Webb (D-Va.), when he traveled to Burma and met with senior leaders in August.

Sources also said that Assistant Secretary of State Kurt Campbell did not raise the case when he met with senior Burmese officials in a rare high-level visit to Burma last month, though it has been raised at lower levels. Jared Gensler, a Washington lawyer who is assisting Wa Wa, said Westerners put on trial in Burma are usually treated well and then deported, but Nyi Nyi appears to be the first American of Burmese descent on trial, which might account for the rough treatment.

State Department spokesman P.J. Crowley said the department is handling the case as it would for any American citizen. "Embassy representatives have monitored his court appearances and been able to talk with him in that setting," he said. "We continue to press the Burmese government for ongoing consular access as required by the Vienna Convention so that we can ensure that he is treated appropriately."

U.S. Detains Voice of America Journalist Fleeing Threats at Home in Pakistan

By N.C. Aizenman
Washington Post Staff Writer
Friday, August 14, 2009

U.S. immigration officials have detained a Pakistani journalist employed by the U.S.-sponsored Voice of America news service who was hoping to find refuge in the United States after Islamic militants in Pakistan destroyed his house and threatened his life.

Rahman Bunairee, 33, was taken into custody Sunday afternoon upon arriving at Dulles International Airport, according to VOA officials.

It is not clear why Bunairee was detained.

Joan Mower, a spokeswoman for VOA, declined to comment on the particulars of Bunairee's detention other than to say: "VOA is obviously extremely concerned. We're really upset about what's happened to this guy."

Cori Bassett, a spokeswoman for Immigration and Customs Enforcement, confirmed that Bunairee is in the agency's custody but said she could not release further details because of privacy reasons.

Bunairee, in addition to filing reports for VOA's Pashto-language radio service, is a popular reporter with the privately owned Pakistani broadcaster Khyber TV. He is usually based in the southern port city of Karachi, but he is originally from the Buner district of Pakistan's embattled North-West Frontier Province near the Afghanistan border, where the Taliban and other Islamic militant groups are active. He recently returned to that region to cover a series of major offensives against the militants by the Pakistani military.

In the past, the militants enjoyed a measure of support, or at least tolerance, among many Pakistanis. But the public mood shifted markedly against the militants this spring, partly because of local media reports about their cruel practices in Buner and other districts then under their control.

On July 7, Bunairee participated in a VOA call-in radio show in which he discussed the Taliban's continued presence in Buner despite a major campaign by the Pakistani military to oust them last May, Mower said.

Two nights later, several dozen armed militants went to Bunairee's family compound in Buner.

Bunairee was not there. The militants told his father that because Bunairee was "speaking against them," they had orders to destroy the house. The men allowed Bunairee's family, including his wife and four children, to leave, then ransacked the house and leveled it with explosives.

That night in the Buner district, militants bombed the home of another journalist, Behroz Khan, a reporter for Pakistan's English daily, the News.

Most recently, Taliban militants flattened the houses of at least six journalists in the neighboring district of Swat before fleeing advancing Pakistani forces, according to Bob Dietz, Asia program coordinator for the New York-based Committee to Protect Journalists.

Soon after Bunairee's home was destroyed, gunmen scaled the wall surrounding Khyber TV's bureau in Karachi, several hundred miles south of Buner, and announced that they were looking for him, Dietz said.

Alarmed, officials at VOA arranged to bring Bunairee to the United States on a J-1 visa, often used by research institutions to bring in scholars and experts on temporary visits.

"We're expanding our Pashto broadcasting, and he was going to be working on that," Mower said.

Dietz stressed that Bunairee was not seeking to relocate to the United States but wanted to spend some time outside Pakistan until matters cooled.

He added that he was particularly concerned about the message that Bunairee's detention sends.

"It's mortifying," he said. "Here's a journalist who has performed a valuable service by reporting from an area critical to U.S. security. And our country is slamming the door in his face."

Iranian Targeted by Onetime Associates

By Tara Bahrampour
Washington Post Staff Writer
Monday, August 3, 2009

In the early days of the Islamic Republic of Iran, Saeed Hajjarian advised the hostage-takers at the U.S. Embassy. During the Iran-Iraq war, he helped establish the much-feared Ministry of Intelligence. Then he turned in a democratic direction, running reformist newspapers and serving as a political adviser to President Mohammad Khatami. In 2000 a gunman aligned with a hard-line government faction shot him in the face, leaving him partially paralyzed and dependent on medication.

And for the past six weeks, Hajjarian, 55, has languished in prison, a key target of the apparatus he helped create.

"He is a great symbol of what the Islamic republic does to its own," said Farideh Farhi, an Iran specialist at the University of Hawaii who first met Hajjarian in the 1990s. "Obviously, today, some in the Intelligence Ministry think he was the brain behind [opposition presidential candidate Mir Hossein] Mousavi's campaign." Hajjarian's arrest, she added, "suggests his continued significance as a reflection of what the hard-liners most fear."

Hajjarian was arrested three days after the disputed June 12 presidential election, along with thousands of other people. Family members said his medications for problems such as seizures and motor control have been administered erratically, which could lead to brain damage or death. After a visit last week, his wife, a doctor, described him as depressed and tearful, and said he has been interrogated in direct sunlight in temperatures of more than 100 degrees and doused with ice water, affecting his heart rate dangerously.

On Thursday, two days after a Human Rights Watch report described his "deteriorating" condition, officials said Hajjarian had been moved to a "state-owned house" with "suitable" medical facilities. His wife, in an interview, said she had not seen the house or been told anything about it.

Iran on Saturday put 100 political activists and others on trial for conspiring to topple the government, and added 10 defendants on Sunday. The opposition's Mousavi alleged that the government had used "medieval torture" to force confessions from the accused.

Hajjarian, who has not yet been tried, had not been particularly active in the lead-up to the election, though he supported Mousavi. But recent articles in the press aligned with the government have listed him as leading a push for democratic reform.

"In the viewpoint of the Iranian government, transition to democracy is a crime, and democracy is equal to evil, and it is a Western term," said Mohsen Kadivar, a reformist cleric who worked with Hajjarian in Iran and is now a visiting professor at Duke University. "So all those figures that try to democratize their country, they have committed a big crime."

Hajjarian, who grew up in a poor section of Tehran, is described by friends as having a dour face but a sharp sense of humor. Like the revolution itself, he seemed to mature from strident youthful ideology into a middle-aged complexity and thoughtfulness. His transformation echoes that of many revolutionaries who coalesced around Ayatollah Ruhollah Khomeini in the 1980s but later moved toward reform.

The end of the 1980s Iran-Iraq war came as a shock to many who had believed in Khomeini's vows to bring down Iraqi leader Saddam Hussein at any cost, said Ahmad Sadri, chair of Islamic world studies at Lake Forest College, who first met Hajjarian in 1992.

"The mentality of the revolutionaries was that this was the dawn of a new age, that this revolution . . . is steadfast, it is non-compromising," he said. When the war ended with no clear victory for either side, "a light went off in their minds and they realized they had been wrong all along about a lot of things, including mixing religion and politics, and that the world of politics is a world of compromise."

After Khomeini's death, when Ayatollah Ali Khamenei ascended to power as Iran's supreme leader, leftists such as Hajjarian and Mohammad Khatami were sidelined. That, analysts said, gave them time to lick their wounds and turn to studying, many moving in more secular directions.

They formed intellectual circles. They started journals. Hajjarian, working on a PhD in political science at Tehran University, pursued the idea of a transition to democracy and advocated pressuring the government from below while striking bargains at the top.

"He's a thinker," said Bill Berkeley, a former New York Times editorial writer who has interviewed Hajjarian for an upcoming book about the hostage-takers. "He had the feeling the revolution had lost its way and gone off the track. He told me war was a bad way to build democratic institutions; he attributes the authoritarian direction that the revolution ended up taking to the Iran-Iraq war."

Hajjarian espoused a democratic interpretation of Islam, said Kadivar, who during Khatami's tenure was Islamic deputy of the Center for Strategic Studies, an Iranian think tank, while Hajjarian was its political deputy. "I remember he said the leader and president is like the employee of the citizen, and the citizen is like the owner of the land. And they rent out to the president or the supreme leader as their workers, so the workers should do as they tell them."

Such ideas, in a system where the word of the supreme leader is considered divine, can be deadly. Analysts say Hajjarian may have been targeted for assassination because he used his insider knowledge to accuse the Intelligence Ministry of a string of killings of intellectuals in the late 1990s.

After recovering from a coma, Hajjarian was physically disabled, but his mental capacities were unharmed. Analysts said the government has targeted him now not for any particular activity but because of his symbolic importance. They said some in the government hope to force a confession of conspiring against the state, an accusation also leveled against other arrested reformists.

"I think it's kind of a terror tactic, to scare people, by showing that even a guy like Hajjarian could be forced to confess," Berkeley said. "If he died [in prison], it would be a debacle for the regime. But if he survives and confesses, that might be something that would be considered an asset."

It could also backfire.

"They have overused this tactic," Farhi said. "Now people will just say that he was forced to do it and further turn their anger against the government."

Special correspondent Kay Armin Serjoie contributed to this report.

Holding the Line

by Meghan Rhoad

July 20, 2009

Related Materials:

Detained and Dismissed

Other Material:

http://www.ontheissuesmagazine.com

Policymakers would do well to bring the same commitment to defending our principles that they have brought to defending our borders.

Meghan Rhoad, US Researcher in the Women's Rights Division

As a feminist and as an American working on immigration policy, I have a clear line in the sand when it comes to the treatment of women who immigrate to this country: "defending our borders" should not be at the expense of defending our values. But when I interviewed women in immigration detention facilities all over the country last year and heard their stories of neglect and abuse, it became clear to me that this line has been crossed.

Immigration detention is the fastest-growing form of incarceration in the United States, and women represent roughly 10 percent of the burgeoning detention population. In 2008, Immigration and Customs Enforcement (ICE), the federal law enforcement agency with jurisdiction over immigration detention, held over 300,000 people in its custody for various lengths of time, and the total may surpass 400,000 this year. The daily immigration detention population now tops 30,000, an increase of roughly 50 percent over 2005. As long as Congress continues to dish out funding to step up Border Patrol operations and to expand immigration detention space, that growth is likely to continue.

The explosion of immigration detention has undermined two core principles of justice: deny liberty only when necessary, and treat those in custody with dignity. But in the politics of immigration, these core principles have become easily exchanged bargaining chips. The U.S. government has enthusiastically embraced a system that deprives more and more people of their liberty while their immigration cases are being processed -- administrative, not criminal, proceedings. Let me be clear: the majority of women imprisoned in detention centers have committed no crime. They include asylum seekers, victims of trafficking, survivors of sexual assault and domestic violence, pregnant women, nursing mothers, children, the elderly and the seriously ill.

Immigration detention has increased even though alternatives such as allowing people to remain in the community while checking in regularly have proven cost-efficient and effective in ensuring that people show up for their hearings.

Not only does our government detain people unnecessarily, but it does so with cruelty and neglect. The conditions in many detention facilities violate the core principle of respect for the dignity of the men and women detained. The glaring failure to provide adequate medical care is of particular concern. International standards hold that detained persons are entitled to at least the same standard of health care they would receive if they were living free in the community. But in interviews for a Human Rights Watch report released in March 2009 on medical care for women in immigration detention, I heard dozens of horror stories of substandard care due to poor policies, implementation and oversight.

As I heard these women speak, the line in the sand between sound public policy and human rights violations became crystal clear: the point where those involved in designing or carrying out these policies knew or should have known that what they were doing is wrong. Transgressions were apparent everywhere:

• Women shackled during pregnancy.
• Breasts pumps denied to nursing mothers, resulting in fever and mastitis, and leaving them unable to continue breast-feeding.
• Critical screenings for breast and cervical cancer withheld.
• Contraception and abortion made inaccessible.
• Women humiliated and demoralized because they could not obtain sanitary pads.
• Confidentiality of medical information breached.
• Medical records lost in transfer.
• Requests for medical help ignored while dangerous conditions went untreated.

These policies do not just endanger women immigration detainees' lives. They also threaten their emotional health.

The impact of these policies is felt not only by those detained, but by their families and communities. One woman interviewed for our report described to me how her inability to get medical care when there were signs that she might have breast cancer was devastating her family:

"I worry about my breast a lot. I told my family, 'Don't ask me to [appeal my immigration case].' I'm not well and I would have to stay without medical care. I don't know from month to month ... things can get worse in my breast. It's hurting me. What was I supposed to do, die of cancer here? With adequate care, yes, I would stay until the end. Because 22 years of my life [have been in the US]. My kids are 12 and the United States is all they know. Depression, inadequate food, detention? Yes, still I would have fought it indefinitely."

There is some hope. The Obama administration is in the process of examining the detention system, including the system's health care record, and its role in our immigration policy. Congress will also be taking on these issues when they debate comprehensive immigration reform. As these reviews are under way, policymakers would do well to bring the same commitment to defending our principles that they have brought to defending our borders. And women who care can tell them so.

This July 4th, Let’s Be True to Our Principles

By Jeanne Theoharis, July 3, 2009

It’s the Fourth of July in America, and a U.S. citizen sits in solitary confinement in New York — and he hasn’t even been convicted of a crime.

His name is Syed Fahad Hashmi. His treatment stands in stark contrast to the freedoms we celebrate on this holiday.

For more than two years, Hashmi has awaited trial on four charges of providing material support to Al Qaeda. Hashmi has never previously been charged with a crime.

He grew up in Flushing, Queens, in New York and became an outspoken Muslim student activist. Now he sits in the Metropolitan Correctional Center.

He is allowed no contact with anyone outside his lawyer and, in very limited form, his parents.

He is allowed to write one letter to one family member a week and cannot use more than three sheets of paper.

His cell is electronically monitored inside and out, with shower and toilet in view of the camera.

He is allowed only one hour out of his cell a day — which is periodically withheld — and is not permitted fresh air but forced to exercise inside in a solitary cage.

He is forbidden any contact, directly or through his attorneys, with the news media and can only read portions of newspapers approved by his jailers, and not until 30 days after publication.

The government publicly claims the centerpiece of its case will be the testimony of Junaid Babar, who alleges he stayed with Hashmi at his London apartment for two weeks in early 2004, stored luggage containing raincoats, ponchos and waterproof socks in Hashmi’s apartment, used Hashmi’s cell phone to call other conspirators and then delivered these materials to the third-ranking member of Al Qaeda in South Waziristan, Pakistan.

Much of the evidence against Hashmi is classified. While his lawyers went through a CIA-level clearance to view it, they are not allowed to discuss it with Hashmi himself.

Hashmi’s case is unfortunately not an aberration. Other terrorism suspects in the United States have been stripped of many of their due process rights.

Yet we, as Americans, tend to think that the abuses in the War on Terror happened outside the United States and are a thing of the past. We’ve focused our attention on our Guantanamo, Abu Ghraib and the CIA’s secret prisons but neglected the abuses right here at home.

Seeking to reassure the American public about closing Guantanamo, President Obama in May decried the techniques used there during the Bush years as “not America.” Two weeks later in Cairo, Egypt, he promised to “speak the truth as best I can.”

The truth — yet to be acknowledged by the Obama administration — is that such treatment is unfortunately still America.

Cases like Hashmi’s should be at the center of the public conversation about truth and civil liberties in the post-Bush era.

On this July Fourth, we must affirm the rule of law here in America, ending inhumane conditions of confinement and reaffirming the right to due process in court.

Jeanne Theoharis is the endowed chair in women’s studies and associate professor of political science at Brooklyn College of CUNY and the author of numerous books on civil rights. For more on Hashmi’s case, see www.educatorsforcivilliberties.org. Theoharis can be reached at pmproj@progressive.org.

Honduras Targets Protesters With Emergency Decree

By William Booth and Mary Beth Sheridan
Washington Post Foreign Service
Thursday, July 2, 2009

TEGUCIGALPA, Honduras, July 1 -- The new Honduran government clamped down on street protests and news organizations Wednesday as lawmakers passed an emergency decree that limits public gatherings following the military-led coup that removed President Manuel Zelaya from office.

The decree also allows for suspects to be detained for 24 hours and continues a nighttime curfew. Media outlets complained that the government was ordering them not to report any news or opinion that could "incite" the public.

A dozen former ministers from the Zelaya government remain in hiding, some hunkered down in foreign embassies, fearing arrest. News organizations here remain polarized. Journalists working for small independent media -- or for those loyal to Zelaya -- have reported being harassed by officials.

Before emergency measures were tightened, thousands of protesters rallied Wednesday to urge Zelaya's return. They were answered by counterdemonstrations in support of the new government. Local radio reported that several bombs were found but safely defused.

Zelaya vowed that he would come back to Honduras over the weekend, while the newly appointed interim president, Roberto Micheletti, repeated in a news conference Wednesday "that when he comes into the country, he will be arrested."

Asked whether Honduras could withstand international isolation and risk losing the foreign aid that keeps the impoverished nation running, Micheletti said, "You know that the Europeans are not going to cut the aid to our country, nor will the Americans."

But on Wednesday, the Inter-American Development Bank did suspend aid, after a similar move by the World Bank. As the impasse continued in Honduras, diplomats at the Organization of American States struggled to organize a mission that would restore Zelaya to power and avoid a clash between him and the military that ousted him.

After nearly 12 hours of debate, the OAS approved a resolution shortly before dawn Wednesday that called on its secretary general, José Miguel Insulza, to undertake every effort to reinstate Zelaya. If Insulza did not succeed within 72 hours, Honduras would be suspended from the OAS, the main forum for political cooperation in the hemisphere.

The passage of the resolution prompted Zelaya to postpone a trip home he had scheduled for Thursday, which diplomats had feared could sharply escalate tensions in the Central American country.

"I am going to return to Honduras. I am the president," Zelaya told reporters Wednesday. But he added that he did not want to complicate the diplomatic efforts of the OAS over the next few days.

Insulza faces an unusually complex task in trying to reverse the coup. Normally, he would negotiate with the de facto government for the return of the deposed president. But OAS members, furious about the military ouster, do not want him to talk to Micheletti, for fear that would legitimize the new regime.

Even hard-core coup backers here say they were surprised how quickly and forcefully the Latin American countries condemned their actions.

"This coup is a mess," said the outgoing Italian ambassador, Giuseppe Magno. "Mistakes have been made on all sides, and the only solution is for a compromise. We hear that different parties are talking among themselves. That is good. The solution has to come from the Hondurans themselves. It cannot be imposed on them."

Honduras is finding itself increasingly isolated. France, Spain, Italy, Chile and Colombia began recalling their ambassadors Wednesday. The Pentagon suspended joint military operations with Honduras.

"What provoked an enormous indignation among Latin Americans, above all, was the military coup," said one diplomat involved in the planning at the OAS, referring to the way soldiers seized Zelaya at dawn and bundled him onto a plane bound for Costa Rica.

Insulza, of the OAS, is trying to establish contact with people who are not closely allied with either Zelaya or Micheletti to build a compromise, the diplomat said. It was not clear when he would fly to Honduras.

The coup is the first big test for the Obama administration's policy of seeking a more diplomatic and collegial role in a region traditionally dominated by the United States. The military action has been roundly condemned internationally, including by President Obama. But U.S. diplomats have sought to prevent a response that is so tough it leads to bloodshed.

U.S. officials said Wednesday that they would hold off formally designating the Honduran military action a "coup" until Insulza reports back to the OAS on Monday. Such a move is significant, because it would lead to the cutoff of millions of dollars in military and development aid.

However, the Pentagon said Wednesday that it had decided to reduce military contact with the Honduran armed forces. "We're still reviewing and making decisions" about what cooperation would be affected, said a spokesman for U.S. Southern Command, José Ruiz.

The U.S. military also has cut off contact since Sunday with those who orchestrated the coup, officials said. The United States has a contingent of about 700 military personnel at Soto Cano Air Base in Honduras, focused on disaster relief, humanitarian assistance, peacekeeping and counternarcotics activities in Honduras and the region.

Honduras also is facing a freeze on petroleum exports from Venezuela and a halt in trade from other Central American countries.

"In the 21st century, these kinds of coups don't last long. It is very hard for a country like Honduras to maintain this kind of position in the face of overwhelming rejection by the world, and especially the region and its major trading partners," a senior U.S. official said, speaking on the condition of anonymity because of diplomatic sensitivities.

Zelaya is a close ally of Venezuelan President Hugo Chávez, who led a bloc of leftist governments in pressing the OAS to suspend Honduras immediately and support Zelaya's quick return to the country -- even at the risk of his being arrested. The governments believe that unless there is a tough response to the coup, their own leftist governments could be threatened, diplomats said.

Venezuela's ambassador to the OAS, Roy Chaderton, described the approach as "diplomatic asphyxiation." The Venezuelan government provided a plane for Zelaya's trips Tuesday to the United Nations and the OAS.

Sheridan reported from Washington.

Will Obama Follow Bush Or FDR?

By Benjamin Wittes and Jack Goldsmith
Monday, June 29, 2009

Soon after the Sept. 11, 2001, attacks, the Bush administration faced a fateful choice about terrorist detainees: Should it get Congress on board, or go it alone? President George W. Bush bypassed the legislature and for seven years based U.S. detention policy on his own constitutional authority, Congress's general authorization for the war against al-Qaeda and its affiliates, and the international laws of war. Working with Congress would be hard, administration officials reasoned; the legislature might constrain executive flexibility; and the president had powerful arguments that he didn't need additional legislative support.

Today, President Obama faces much the same choice, and he appears sorely tempted to follow the same road, for the same reasons: "White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible," The Post reported Saturday, and "Congress may try to assert too much control over the process." Obama is considering creating a long-term detention apparatus by presidential executive order based on essentially the same legal authorities the Bush administration used.

Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration's unilateral approach to detention. The attraction is simple, seductive and familiar. The legal arguments for unilateralism are strong in theory; past presidents in shorter, traditional wars did not seek specific congressional input on detention. Securing such input for our current war, it turns out, is still hard. The unilateral approach, by contrast, lets the president define the rules in ways that are convenient for him and then dares the courts to say no.

This seductive logic, however, failed disastrously for Bush -- and it will not serve Obama any better. Bush's approach avoided congressional meddling but paradoxically sloughed off counterterrorism policy on the courts. Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief's traditionally broad powers to detain enemy soldiers during war.

The result has been nearly eight years of unstable policy with no safe harbor for executive conduct and no settled rules for detainees. Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.

In the short term, Obama may get away with a unilateral executive detention scheme. His personal prestige is high. He can dress up his detention plan as a narrowing of Bush's policy. It will apply to fewer detainees than Bush's policy and at a facility not named Guantanamo Bay.

But refusing to go to Congress still leaves inexpert and unaccountable courts to decide the details of our detention policy. Courts will not defer forever to the notion that the government can lock up people indefinitely on the say-so of the president, and, as time passes, they will continue their march toward peacetime criminal-justice standards and procedures for wartime detainees. The result will be continuing uncertainty, further judicial encroachments into the conduct of warfare and further constriction of the president's power. Hard trade-offs between liberty and security will be made haphazardly and without democratic legitimacy.

The alternative, going to Congress, will be painful politically -- as Congress's budgetary machinations limiting the president's discretion on closing Guantanamo have highlighted. Obama would have to spend political capital that he prefers to save for health care and climate change.

The president can still get what he needs on detention if he works from Congress's bipartisan center, if he releases more substantial information about the detainees he thinks cannot be set free and if he speaks often -- as he did at the National Archives recently -- about the need for stable rules to govern non-criminal detentions that America cannot forswear. Presidential insistence on detention legislation will force members of Congress to take a stand and will minimize congressional carping down the road. The process of crafting this legislation would spark a debate that would educate the country about the threat we face and would legitimate whatever policies emerge from the process.

When Franklin D. Roosevelt sought congressional authorization for the Lend-Lease program in January 1941, the isolationist-leaning nation was evenly split over the proposal. After two months of sharp congressional argument and national debate, almost two-thirds of the country supported Lend-Lease, and Congress passed the program by large margins. "We have just now engaged in a great debate," Roosevelt proclaimed. "It was not limited to the halls of Congress. It was argued in every newspaper, on every wavelength, over every cracker barrel in all the land; and it was finally settled and decided by the American people themselves. Yes, the decisions of our democracy may be slowly arrived at. But when that decision is made, it is proclaimed not with the voice of any one man but with the voice of one hundred and thirty millions. It is binding on us all. And the world is no longer left in doubt."

Roosevelt's approach, not Bush-era unilateralism, should be President Obama's model.

Benjamin Wittes is a senior fellow at the Broookings Institution and the author of "Law and the Long War: The Future of Justice in the Age of Terror." Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the Bush administration. Both are members of the Hoover Institution's Task Force on National Security and Law.