by hilzoy
"But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into 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.
I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."
"The two participants (…) said Mr. Obama told them he was thinking about "the long game" — how to establish a legal system that would endure for future presidents."
I am having trouble picturing the sort of person who would be a candidate for “preventive detention”.
Someone who can be proved to have committed a crime gets sentenced to prison. That’s not PREVENTIVE detention. So the first requirement is: someone who CANNOT be proved to have committed any crimes.
Lots of things are defined as crimes. So our preventive detainee must be someone who cannot be proved to have done much of anything before we caught him. And yet there must be a reason we consider the man dangerous.
One possibility: he declares HIMSELF to be our enemy, bent on our destruction. He does not confess to having DONE anything yet, mind you — not even conspired with or “materially supported” people who have. And we cannot PROVE he has committed those crimes, either. He is merely a self-declared “enemy combatant” and proud of it. If such a person can be imagined, would he not be in essence a POW? There’s no moral dilemma about holding POWs, is there?
Now, I suppose we can imagine a similar person who does NOT declare himself an enemy combatant. We’re holding him prisoner. We can’t prove he has committed any crimes. He maintains he’s NOT a member of al-Qaida. We might believe he’s lying about that, but here’s a question: will Al-QAIDA believe he’s lying? Would a terrorist group welcome back a man who, in order to get out of prison, denies his allegiance to them?
I must suppose that Obama has in mind SOME profile of the archetypal candidate for “preventive detention”. Dick Cheney, maybe?
–TP
The glow FINALLY coming off?
This guy scares the pants off me, and I don’t scare easily.
Bless you for the big red type.
Obama and his people have known all along this was the path they were going to take, or he’d have been putting out a very different message about the prisoners than the one he’s been sending since early February.
What’s most appalling is the level of cowardice, the pandering to the mindset of October 2001 after all we’ve learned since, and all the time people have had to come to their senses…
He’s simply choosing not to lead on this issue. Or, more accurately, he wants the pretty words to be considered leadership, while he caters to the most ignorant, stupidly fearful streak in the society.
We have a form of preventative detention in the United States already, it’s called “civil commitment.” As noted in this law review article, it is open to abuse even though a judge must make the decision to commit someone.
But this is really a horrible and terrifying decision on Obama’s part. I can’t imagine WTF he’s thinking. With Bush I could chalk it up to a general ignorance of the law and constitution combined with indifference and a lack of empathy, plus a push by his VP to go all fascist. But Obama, a Harvard educated lawyer, who taught constitional law (I think), I just don’t know. I mean WTF? WTFF?
So let’s see, which of the complaints in the Declaration of Independence does this fall under… Aha! This:
For depriving us in many cases, of the benefit of Trial by Jury
Maybe this:
For transporting us beyond Seas to be tried for pretended offences
He’s got a few more to go until he reaches Bush’s total, I guess. Small comfort.
We are screwed.
Obama’s proposal to hold some of the prisoners indefinitely without trial will have to pass Congress, yes?
Here we really pay the price for the cringing pasty grey “leadership” that is Harry Reid. I’m wondering if 41 Democrats could be gotten to filibuster this. Oh, the question answers itself; of course not.
Could it simply be defeated in the House? I’m grasping at straws, probably…
You know, what’s to understand? He really was pals with Ayers, it was no smear. You’ll figure that out in time.
So, anyway, in light of this, what’s your opinion on Obama’s Civilian Security Force?
Obama’s proposal to hold some of the prisoners indefinitely without trial will have to pass Congress, yes?
I don’t know, Nell. Even if Congress might be prone to defeat it, couldn’t Obama just claim the authority under his imaginary “Commander in Chief powers”?
All of this is a classic example of the danger of putting one’s hope in lesser evils like today’s Democratic Party. There is no question that it is a lesser evil (compare and contrast Obama’s speech to Cheney’s for proof of that), but it just as certainly cannot be counted on to defend our basic civil liberties or even our system of government.
Here we really pay the price for the cringing pasty grey “leadership” that is Harry Reid. I’m wondering if 41 Democrats could be gotten to filibuster this. Oh, the question answers itself; of course not.
If we have any chance of getting someone in DC to push back against this, I think it’s important to get off the ridiculous meme that Congressional Democrats are weak-kneed progressives. The leadership of the Democratic Party is deeply committed to militarism and authoritarianism…with a human face of course. Our best hope is that they are weak-kneed enough that they can be threatened by a revolt of their base. The danger lies in their continued willingness to defy their electorate and vote their values. And Reid is a symptom, not the disease. He has the full support of Senate Democrats. His faults are his party’s faults.
You go to the heart of the matter. If you have evidence that a detainee led enemy troops in battle, had explosives training and was deployed with intent to use that training, and so on, show the evidence. I’m willing to listen to a proposal for some kind of special judicial review of that evidence, but not for the idea that all it takes is the say-so of US military or security personnel and that’s it, you’re in detention for the rest of your life as an enemy combatant. If the evidence can’t stand up to judicial review and some kind of transparent scrutiny, it is not adequate for detaining someone for life without hope of release.
Brett, this has eff-all to do with Ayers. Just let it go.
Wrt the service: isn’t that public service in return for free college? OOoooh, scary.
You’re trivializing what’s really at issue here.
No, I’m just ahead of the curve on you, because I’ve got no reason to pretend Obama is some warm and fuzzy humanist, rather than a sociopath with a remarkable gift for making speeches.
Yeah, the Bush administration had some nasty tendencies. They mostly directed those tendencies outward.
How confident are you Obama’s tendencies in that direction, which are coming clearer every day, will not be directed inward, towards Americans? The guy does not, evidence suggests, take well to people refusing to do as he says.
Brett shared
“This guy scares the pants off me, and I don’t scare easily.”
You flatter yourself…
“You know, what’s to understand? He really was pals with Ayers, it was no smear. ”
he was “pals” with a two-bit terrorist from 40 years ago, therefore he wants the power to lock-up two-bit terrorists ?
Hi Hilzoy–I read your blog eagerly and generally with enthusiastic agreement. I’m also someone who’s studied and written on human rights issues and who is deeply troubled by preventive detention.
But I don’t think that the concept of preventive detention of those who can legitimately be described as prisoners of war is per se illegal or immoral, nor is it as untenable as your posts and some of those that follow it suggest.
For example, a detainee who says, without tainted coercion, that he is a member of al Qaeda and will try to kill Americans if released is the equivalent of a uniformed enemy soldier.
I want to take care not to overstate this position and to recognize some of the more the obvious potential legal and moral problems.
First, how do we determine who exactly falls into the category of a non-prosecutable POW? Is the evidence of this status reliable and untainted by torture, cruel inhuman and degrading conduct, either against the detainee or against any other witnesses?
Second, since there is no markable end to this war, unlike those where we hold uniformed POW’s, how long could we hold the al Qaeda POW’s?
Third, would this POW status be limited to the hopefully relatively smaller group of detainees who are not prosecutable because of illegal treatment at the hands of the Bush administration? If not, isn’t there the risk that this POW classification will be the exception that swallows the rule of requiring legal treatment, interrogation and detention, particularly since its so much easier?
I’d recommend an article written by Prof. Ronald Dworkin (which I can’t seem to find), one of the most brilliant liberal legal scholars around, shortly after 9/11, in which he concluded that the struggle against terrorism was a hybrid of military and criminal enforcement and in which he suggested legal structure that combined the two. Part of that structure was detention of combatants with periodic review.
I don’t want to say that Prof. Dworkin was or is an advocate of preventive detention, but he did appear to contemplate a system of detention outside of criminal process for a limited class of people that is similar to what has been proposed by the President.
I suspect my view won’t have much support here. But I think those of us who care about human rights, the rule of law, and who are supportive of the President’s overall recalibration of our security policies need to take seriously the problem presented by the fact that there are lethally threatening detainees who cannot be convicted of a crime.
I think we all wish that this was not true.
But since it is, what do we do about it?
Best,
Charlie
Hilzoy, you’ve known since February – we all have! – that Obama is in favor of preventive detention: why has it taken you till May to conclude you object to even Obama getting to have people locked up indefinitely without evidence and without trial?
Brett: You supported this stuff and much much worse when Bush did it, so STFU.
“The glow FINALLY coming off?
This guy scares the pants off me, and I don’t scare easily.”
Hahahahaha! Oh, man. After a crappy week of demoralizing service on my county grand jury, I needed a laugh, and you provided one. For someone who constantly and without basis characterizes complete strangers as “sociopaths,” you come across as one of the most paranoid, pants-wetting scaredy cats I’ve ever encountered on the interwebs.
Agree, Charlie Martel. Thanks for a thoughtful and analytical post. The “preventive detention” that Obama describes seems to apply to people with POW status, not criminal defendant status. With the assistance of judicial oversight (through habeas corpus), it seems to me that the legitimacy of their detention can be tested for constitutionality, such as Hamlily. It seems to me that if the procedures pass muster in the courts, we don’t have much to complain about from a Constitutional point of view. Or am I missing something?
I mean, the idea that someone could casually toss of statements about “my buddies in the Michigan Militia” — one of those paranoid “OMG UN BLACK HELICOPTERZ !!!!1!” conspiracy theory organizations — then describe himself as “not scaring easily” . . . HAHAHAHAH!
But it’s a kinder, gentler preventive detention.
Obama has just officially taken ownership of this particular bit of Bush’s legacy.
…need to take seriously the problem presented by the fact that there are lethally threatening detainees who cannot be convicted of a crime.
I suppose that if we take this “problem” seriously, that would make us “Serious People”, right? You know, the kind of serious people who have nothing to do with DFH and have no problem whatsoever with starting pointless wars over nothing and ratcheting up every aspect of the national security state without limit.
There are tens of millions of people in the world that are just as, if not more “lethally threatening” as any detainee in Gitmo. Adding a few dozen to tens of millions makes no difference whatsoever. There is no actual problem here for us to take seriously. Instead, we have nothing but the obsessive fixations of bedwetters; we might as well talk seriously about the problem of the giant purple dragons coming to eat us or the angry monkeys that live in our closets. The moral cowardice on display here sickens me.
If you want to call detainees POWs, then try them under the UCMJ and be done with it.
I am pretty sure Obama’s prayers upon retiring nightly include a request that a Cat 6 or 7–yeah, I know, Cat 5’s the biggest ever–strikes Gitmo this summer and washes the whole thing into the sea.
Under the circumstances–any prosecution would require recourse to evidence improperly obtained–since he can’t really summarily execute them (well, he could, but I doubt he’s got the stones), it’s the best possible solution.
@Sapient:
You may be missing the fact that, just like its predecessor, this administration does not recognize any of the prisoners in its custody in Bagram or Guantanamo as POWs.
There is not yet a complete accounting for the prisoners held in Afghanistan, at the various military and CIA prisons there.
The protections of common article 3 of the Geneva Conventions are not even now being extended to all prisoners at Guantanamo, an issue ObWi commenter CharleyCarp was recently pursuing in court.
These efforts to make the Obama proposal for indefinite detention without trial sound reasonable require an even more incoherent and ad hoc approach than already exists.
It’s the very effort to go around our existing system of civilian and military courts that made Guantanamo repugnant, but that’s the effect of “reformed” revived military commissions and of this to-be-proposed detention-without-trial.
You go to the heart of the matter. If you have evidence that a detainee led enemy troops in battle, had explosives training and was deployed with intent to use that training, and so on, show the evidence.
None of those activities are crimes, so even if you had evidence, you couldn’t prosecute him.
But I don’t think that the concept of preventive detention of those who can legitimately be described as prisoners of war is per se illegal or immoral, nor is it as untenable as your posts and some of those that follow it suggest.
If they’re legitimately described as POWs, then they are subject to the GC, which only justifies holding them as long as the War in Afghanistan continues. But the war is over: we have overthrown the Taliban and imposed a new government in Afghanistan. People who fought in the war should be repatriated since fighting in a war is not a crime.
The War in Afghanistan is over????????????I’ll just leave that for others to deal with, and just, ahem… PRETEND, that there still is a war going on in Afghanistan, as well as Iraq. If so, then the Obama Administration can pretty much just reclassify the detainees as POWS and under law, can hold them till the end of war, however that’s determined. Of course, that’s kind of “through the Looking Glass”, since till now we’ve been arguing that they AREN’T enemy combatants, and therefore are entitled to Geneva Convention protection.But what the Geneva Conventioin giveth, it also taketh away.If you want combatant status and protection, you also get the “privilege” of being held till war’s end-which for Afghanistan, may be a long, long time away.
Of course, the entire POINT for the Bush administration of holding people in Gitmo was to avoid having to classify them as POWs or bring any charges against them, because they wanted to torture them to get “evidence” linking Al Queda and Iraq.
Nell — Third Geneva Convention, not just common article 3. Huge difference.
(I’m sending you an email).
As I heard the speech, I saw a very non-commital notion of “preventive detention”, at best — mostly, in this part of the speech, Obama was saying two things:
1) There are people in Guantanamo cells who, while they haven’t done anything, still pose a threat to Americans lives if released.
2) “I am not going to release individuals who endanger the American people.”
3) … I’m just not sure yet what I will do. Working on it.
Now, I’m not exactly jumping at the prospect of making a new category of incarceration; I certainly more than respect Hilzoy’s principled opposition, and a number of her supporters here.
But I also find it comfortable (even if, perhaps, in a silver lining sort of way) that our President doesn’t take his country’s imminent security lightly.
“There are tens of millions of people in the world that are just as, if not more ‘lethally threatening’ as any detainee in Gitmo. Adding a few dozen to tens of millions makes no difference whatsoever.”
The phrase “suck it up” comes to mind reading this, which, for me, makes Obama’s rejection of it a good thing. But then maybe I’m being unfair in reading it.
On the other hand, I also suppose some people are certainly of the opinion that saying “suck it up” constitutes leadership; but I disagree on this as well.
Point: But I also find it comfortable (even if, perhaps, in a silver lining sort of way) that our President doesn’t take his country’s imminent security lightly.
What worries me is that many well-meaning Americans may take it that way.
I don’t find it in the least bit “comfortable” when the leader of the only superpower declares he’s in favor of indefinitely detaining anyone who’s a “suspect” – and not an American citizen. I find it distinctly uncomfortable – it’s the key reason I haven’t been to the US since 2004, and the key reason why I plan to book my plane tickets to Montreal later this year via a travel agent so I can be absolutely certain I’m not passing through the US at any point in my journey.
I’m not the kind of person the US needs to worry about, though. I react to the news that extra-judicial imprisonment is still American policy with wary avoidance. I may harm the US tourist industry by a fraction, but I’m sure you’ll cope.
The long-term threat to US security from extra-judicial imprisonment of suspects is just the same under Obama as it was under Bush: the US is fomenting anti-American terrorism.
Christ, I’m getting awfully tired of this concept of “American lives” being used to justify bombing the cr@p out of people, suspending our most cherished legal principles and generally behaving as if there was nothing more important in the world. If you really want to save American lives, ban cars and fast food.
This guy scares the pants off me, and I don’t scare easily.
Because continuing to detain a subset of the people Bush and Cheney had been detaining makes him worse than they were. And designing a system for detention that involves the judiciary makes him more of a dictator than the two who claimed the power to detain people by executive fiat.
No surprise; this is the same logic that makes having been briefed about the torture regime worse than designing and implementing it. (I flatter the GOP, of course; their logic is that having been briefed about the torture regime is a terrible thing even though there was no torture.)
“You go to the heart of the matter. If you have evidence that a detainee led enemy troops in battle, had explosives training and was deployed with intent to use that training, and so on, show the evidence.
None of those activities are crimes, so even if you had evidence, you couldn’t prosecute him.”
Those are inchoate crimes, FWIW.
It seemed to me (based on other parts of the speech where he specifically mentioned hearsay rules) that what they’re looking at are terrorism-related standard rules of evidence and prosecution, like hearsay exceptions or inchoate offenses.
That, after all, is the entire point of creating a rule-of-law structure here, which seems to be Obama’s goal; if the structure that they create is too harsh or unjust, then at least it can be criticized on those terms. That’s miles away from a Bush-style seat-of-your-pants system that provides no real justice or accountability b/c we don’t even know what’s happening (and they don’t care).
It’s a hard sell after all we’ve been through, but it’s important to keep that distinction in mind. The legitimacy of a rule of law doesn’t turn solely on whether the law is harsh or soft, over- or under-deterrent, too specific or too prophylactic: the question is whether there is a predictable, definable, fairly- and equally-applied rule for everyone.
My hats to Adam for the best post on this thread, and getting to the heart of this.
hilzoy, it seems to me that you’re buying into the Cheney framing of the debate: it is not a given that we can only prosecute terrorism via extralegal means and are therefore faced with a choice between legality and effectiveness.
“Preventive detention” is not a per se illegal concept — on the contrary — technically, bail bonds are preventive detention. The question is what sort of accountability, evidence, and investigation are set up around these structures. Obama — as far as I’ve heard — has talked exclusively about making procedural, not substantive, changes to terrorism enforcement.
ditto Point. well put, Adam.
Mr. Martel has a point, reluctant tho I am to admit it.
Another possibility is that we have intel which reaches, say, the clear-and-convincing standard, but which does not suffice for guilt beyond a reasonable doubt, that someone in our custody is a terrorist.
I think it’s fair to have a debate about this, and to have Congress approve any such preventive-detention regime. I would not approve unilateral executive action by Obama.
And no such regime should be permissible for U.S. citizens.
Adam:the question is whether there is a predictable, definable, fairly- and equally-applied rule for everyone.
And the answer is, so long as Obama plans to continue to detain any of the extra-judicial prisoners from the Bush regime:
No, there is not.
There is no way to make the continued imprisonment of these people legitimate. There are various ways in which continuing to detain them can be justified – Bush and Cheney ran through a stack of them, Obama declares an intention to start his own stack of justifications – but there’s no way to turn back time and make it all legal from the very beginning.
I find it distinctly uncomfortable – it’s the key reason I haven’t been to the US since 2004
Um, don’t you live in the UK? Like, this place? And the thought of visiting the US makes you “uncomfortable”?
In related news:
WASHINGTON—In its first major hearing on the use of abusive interrogation tactics at Guantánamo Bay, a blue-ribbon panel found detainee Omar Khadr mentally unfit to testify about his years of psychological torture. “Because of Mr. Khadr’s fragile state due to unknown hours spent under the most brutal, mentally straining conditions, he cannot be trusted to speak competently on his own behalf,” said Rep. Kit Bond (R-MO), the panel’s chairman. “It is unfortunate that someone with such intimate knowledge of the horrors of waterboarding, stress positions, and induced hypothermia is so emotionally unstable. He bursts into tears at even the mention of mock torture.” Bond added that Khadr’s confession of planning 9/11, the London train bombings, and the Iranian hostage crisis would be kept on the record.
This is a little too close to being the real news to be as funny as it otherwise deserves.
Jesurgislac, with all due respect:
1) I’m pretty sure Obama’s fifth category of Guantanamo detainee is a lot more specific than “suspect”;
2) I’m fairly certain you will not fit that category;
3) as I heard it, the President made a strong point that those in these categories would NOT be under “extra-judicial imprisonment”;
4) “The long-term threat to US security from extra-judicial imprisonment of suspects is just the same under Obama as it was under Bush”
Doesn’t the quality of detention have a LOT more to do with violent anti-american sentiment than the quantity — IOW (and, really, with all due respect) with regard to their effects on terrorist recruitme, could you be confusing indefinate detention with torture?
On a political level, don’t forget the Willie Horton effect. If a single prisoner now in custody is released, then gains notoriety for any act against America or an American, it suddenly becomes easy again for the Cheney’s to promote fear.
I think Obama is smart enough to realize both the morally gray and ultimately futile concept of the GWOT, and the fact that reconstructing America’s perception of itself won’t happen overnight.
I think it should be obvious that indefinite “preventative detention” is the sure sign of a totalitarian state, but for those who’ve suddenly fallen in love with the concept Greenwald summarizes the major points aganist it here.
What baffles me here is the assertion that this is a “unique” problem.
This is not a unique problem. People you wish to imprison because they have sworn loyalty to a cause you dislike, or said they hate your country, or wish to bring down your government, but who have committed no actual crime you can prosecute them for, are called “political prisoners.” Many, many regimes (most of them authoritarian) have faced the problem of creating a legal framework to imprison such people.
I suggest we look to the Soviet Union for precedent- we seem to be getting most of our interrogation strategies from them anyway. Article 58 of the old Soviet penal code provides quite a comprehensive structure for imprisoning people for things they think rather than things they’ve done.
Alternately, we could just take another hint from the Soviet penal code and start admitting confessions obtained through torture as evidence. Then we can make sure all of our prisoners are found guilty of some act of terrorism. Since we’re planning to imprison these people indefinitely anyway for reasons they can’t challenge in court, we may as well find a way to slot them into the existing criminal justice system.
Nell,
My point was that Obama seems dedicated to the idea of creating a system that would withstand judicial scrutiny. If the situation is such that people like CharleyCarp can fully litigate matters in court (and perhaps prevail) that’s what it’s all about. Due process doesn’t necessarily mean that everyone agrees with the outcome.
“He’s simply choosing not to lead on this issue. Or, more accurately, he wants the pretty words to be considered leadership, while he caters to the most ignorant, stupidly fearful streak in the society.”
Thank you, Nell, for stating, strongly, what I was arguing, seemingly without success, in yesterday’s Dick Cheney thread.
“But it’s a kinder, gentler preventive detention.
“Obama has just officially taken ownership of this particular bit of Bush’s legacy.”
Another “what russell said” — in this case, sadly so.
I just posted this in the Cheney thread from yesterday. Perhaps Getting to Know Obama will provide some insight into our President and the current goings-on.
clean-up needed in aisle 1.
I think it should be obvious that indefinite “preventative detention” is the sure sign of a totalitarian state, but for those who’ve suddenly fallen in love with the concept Greenwald summarizes the major points aganist it here.
Greenwald is undermining his own case: He draws the clear parallel to the “other countries” Obama references as grappling with the issue of “preventive detention” (a term Obama never actually used).
Every one of those other countries was considering extended detention terms from 14-90 days as a window for evaluating evidence against terrorists. If that’s what Obama was referring to (and it’s clear that he was), that is a far cry from “indefinite” detention, which also isn’t mentioned (or really even implied) in the speech.
Again, Obama seems to be talking about something entirely different from Cheney — but Cheney’s methods are being interpolated into Obama’s policies for some reason. A preventive policy (again, like inchoate crimes, bond releases, and many other standard aspects of our criminal justice system) is not by nature “indefinite” nor “perpetual”; the Cheney policy was perpetual because it was an unaccountable legal black hole, not because it was “preventive.” So far, Obama’s explicitly disavowed all of the conditions that allowed that detention policy to persist.
I agree that Adam at 10:33 makes good points.
What distinguishes a legal from an extra-legal system of justice is the degree to which it is arbitrary and subject to the whims and prejudices of the people who are operating it. The major benefit of a system of “laws not men” is that is does not depend on consistently and repeatedly finding good people to run it, that it isn’t a catastrophe when scoundrels or (god-forbid) sociopaths get into the seats of power.
So I will keep an open mind about what Obama proposes going forward, but one very important criterion has to be, what could be done with this system if Dick Cheney (or somebody worse) were calling the shots. And in that respect I am on the one hand deeply skeptical that Obama and his advisors can craft anything which will stand up to scrutiny, but on the other hand it has to be admitted that our existing system of pre-911 law has already failed that test.
This last point is important, because at a certain level procedural structure can only go so far in protecting us, without being grounded in the political and cultural realities of the underlying society. A “nation of laws not men”, if it is to actually work in practice, is not a statement about mere procedural structure but rather is a political statement about our culture and the attitudes which we take towards the arbitrary exercise of power. Obama’s biggest fault here is in not providing better and stronger leadership to a population who need to be weaned off of their irrational fears. IMHO this is one place where his temprement of caution and incrementalism are not helping.
So if we are to get much closer to that ideal state of “laws, not men”, it will have to be done from the ground up, educating and persuading ordinary people, in combination with what is done from the top down by the President, Congress and the courts. Otherwise even the best system of legal protections will be like a tall and formidable castle wall which poses little barrier to the barbarians because nobody is willing to defend it.
Ben Franklin had it right when he said “A republic, if you can keep it”. Our leaders can’t keep our republic or our legal system for us. We have to do that for ourselves. Il faut cultiver notre jardin.
“If we don’t have enough evidence to charge someone with a crime, we don’t have enough evidence to hold them. Period.”
And yet we kept how many enemy combatants on U.S. soil in WWII? Several hundred thousand, I think. And we held them not knowing at the time how long they would be in custody. Preventive detention. Didn’t want them to fight again.
“I don’t find it in the least bit “comfortable” when the leader of the only superpower declares he’s in favor of indefinitely detaining anyone who’s a “suspect” – and not an American citizen.”
But he didn’t say that. He said people who “pose a threat,” “expressed their allegiance to bin Laden,” or “made it clear they want to kill Americans.” He uses these criteria to determine who is at war with America.
“Those are inchoate crimes, FWIW.”
I guess you could say they are overt acts in furtherance of a conspiracy if you want to go the criminal route.
That’s the problem at the foundation of this debate. We have a different situation here: non-national groups fighting against a country. From a policy perspective, using the criminal prosecution route makes sense in some instances, mainly because the combatants aren’t wearing uniforms and the organization they belong to never signed the G.C. However, their coordinated efforts resemble that of a nation at war.
IMO, Hilzoy’s approach of “if you can’t prove a crime you can’t lock them up” is incredibly naive. It will absolutely fail to protect the United States. It may be one thing to demand full G.C. POW status but it is entirely another to insist that our treatment of Al Queda be confined to domestic criminal law.
Charlie Martel makes some good points. So does Adam.
I don’t have a problem from a policy perspective of having a hearing or review at some point since there will likely be no definitive end to this war. That is what is happening for some and what Obama is proposing for those that cannot be tried under the existing standards for whatever reason but are too dangerous to release.
Too many of the criticisms of Bush and now Obama seem to ignore the fact that this is not a domestic problem.
Excellent comment, TLT.
Otherwise even the best system of legal protections will be like a tall and formidable castle wall which poses little barrier to the barbarians because nobody is willing to defend it.
(Or because the barbarians are in an undisclosed location in the fortress, running the show.)
Every one of those other countries was considering extended detention terms from 14-90 days as a window for evaluating evidence against terrorists. If that’s what Obama was referring to (and it’s clear that he was), that is a far cry from “indefinite” detention, which also isn’t mentioned (or really even implied) in the speech.
Eh? From what I’ve read it sounds a lot more like indefinite detention that something limited to, say, 90 days. If we’re talking about people for whom we lack the evidence to convict in court but that are too dangerous to release, than holding them for 90 days doesn’t change the fundamental dynamic: you still have to release them after 90 days and they’re still too much of a “threat”. Haven’t all of the gitmo detainees been in custody for over 90 days anyway?
“I think it should be obvious that indefinite ‘preventative detention’ is the sure sign of a totalitarian state . . .”
Didn’t Tom Cruise star in this movie?
We are still at war in both Iraq and Afghanistan, no matter how much some people might like to pretend it’s all but over. Adam, bc, and Charlie Martel have expressed my feelings on this matter.
Holding confessed al’Qaeda members for as long as we are at war is perfectly justifiable, by any reasonable standard. They should be treated more or less as POWs, and certainly should not be subject to torture. But we have every right to hold them as long as they are at war with us.
I would even suggest two separate categories – native-born Iraqis or Afghans captured in their home countries should be kept separate from foreign-born prisoners. The Geneva Conventions recognize the right of resistance to foreign occupiers, but they most certainly do not recognize the right of a citizen of a third country to travel to the occupied country to fight. In the 19th century, that kind of behavior was called filibustering and was subject to summary execution. We are more civilized nowadays, I guess.
“We must have clear, defensible, and lawful standards for those who fall into 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.”
It’s called “the federal court system.”
It’s that in theory, at any rate.
Minority Report.
Gary Farber, I think it’s important to quote the entire paragraph in order to put “those who fall into this category” into context:
“As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. 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.”
I read this to mean that they’re working on giving these people POW status and treating them lawfully as POW’s. The fact that the war against al Qaida seems indefinite means that periodic review is necessary. Is there really anything wrong with that?
Eh? From what I’ve read it sounds a lot more like indefinite detention that something limited to, say, 90 days.
That’s based on the characterization of some human rights attorneys who heard an advance version of the speech — it’s in that NYT article hilzoy linked to.
Obama’s speech explains the problem as one that other countries have grappled with — as Greenwald explains, that seems to be a reference to the UK, which briefly considered extended detention for terrorist suspects.
If anyone else can find a non-secondhand reference to “indefinite” claim, that would be wonderful. Obama’s speech seems to clearly disavow that position.
I question the notion that we are or ever were at war with Afghanistan or Iraq; bc makes the relevant point: our system is ill-equipped to deal with international crimes, particularly criminal matters. (A “federal court system” is, by definition, not well-equipped; hence the term “federal.”)
It’s becoming increasingly clear that we’re (meaning any nation) just not very good at operating on this scale: piracy (intellectual or otherwise), terrorism, organized crime, antitrust, financial regulation… we’re really bad at it. Our system is geared toward domestic (perhaps nation-state-based) enforcement.
I suspect that the endgame here is a more accountable international court — unfortunately, the Bush Admin’s torpedoing of the ICC has made it a largely defunct institution and there’s really no good alternative. As a general matter, supranational enforcement doesn’t work very well, but there may be an exception for crimes that are inherently anti-national, like international piracy and terrorism.
It’s worse than that. “Tainted evidence” likely means “evidence obtained through or in connection with torture.” So at least some of these preventive detainees are being deprived of due process because we tortured them. That’s our solution to the procedural and moral dilemma.
I think Charlie Martel comes closest to my point of view. This is a balancing act, and I think Obama’s efforts are thoughtful and fair.
The protections we afford the accused in the United States are not absolute. They evolved over decades to balance the competing interests of personal rights and protecting the populace. We can’t transfer these rights wily-nily to foreign detainees because the circumstances are completely different: we don’t have the full capacity to gather evidence in the battlefield, or in territories where we have no jurisdiction; we can’t count on witnesses being available for testimony; we have intelligence assets to protect; and the nature of the threat is simply different than a common criminal.
This is a different sort of problem, and we need to come up with new balance between the competing interests. HIlzoy writes:
“If it is not a crime, why on earth not make it one?”
After the commission?
The fact that the war against al Qaida seems indefinite means that periodic review is necessary. Is there really anything wrong with that?
There is no war against AQ; AQ is not a state.
Let’s stop playing games here: no matter what AQ does, the “war” can be said to continue. Even if Osama bin Ladin goes on TV and apologizes before turning himself in to the US Embassy, there will always be some person somewhere who can claim “I am AQ and I will continue the fight!” The conflict cannot end. States can capitulate but decentralized franchise operations cannot.
I mean really now: what do you think that periodic review will consist of? Will a commission review the admissions made under torture against the detainee? Or will it review the rumor and heresay against him that would never be allowed in a civilian court or under the UCMJ? None of that is going to change, so if it was good enough to keep the detainee in preventative detention to start with, it will still be good enough to keep him in detention indefinitely. Right? The only thing that can change is whether the detainee says he’s part of AQ…but if a detainee changes his tune in that regard, we’re not going to believe him, so even that doesn’t matter.
Freedom is not always easy, and it is not always safe. Neither is doing the right thing. Nonetheless, we ought to be willing to try. I wish I saw the slightest reason to believe that we are.
Bwa…hahahahahahahahahaha! Coming from a lesser-evil pwoggie-bloggie partisan hack pundit-wannbe, that’s fucking rich! Oh, is doing the right thing hard? Really?
And just how the fuck would you know?
Declaring a permanent and open-ended state of war is also a sure sign of a totalitarian state.
Normally, I try to argue my points, but in this case I’m so flabbergasted by the willingness to throw fundamental legal principles overboard that I just won’t bother.
Thanks hilzoy et al for taking a stand.
Kevin Drum on Hilzoy’s post:
This is a case where, unfortunately, I think outrage is too cheap and too easy.
Concur.
Not that Drum has anything on the acuity of Christian [sic] Weston Chandler’s cogent analysis.
Fiction: “The fact that the war against al Qaida seems indefinite means that periodic review is necessary. Is there really anything wrong with that?”
Truth: “There is no war against AQ; AQ is not a state.”
Except, Turb, there is the war on terror — or whatever it is President Obama wants us to call it.
Take a chill pill, Smithee.
1) I’m pretty sure Obama’s fifth category of Guantanamo detainee is a lot more specific than “suspect”;
2) I’m fairly certain you will not fit that category;
I’m fairly certain that I don’t, too, for the following compelling reasons:
(a) I’m white; (b) I’m not a Muslim; (c) I’ve never visited any Middle Eastern or predominantly Islamic country; (d) My given name and my surname are both very British-origin; (e) I have a British passport; (f) I’m white and I’m not a Muslim. While any one of these might not save me, that all six apply mean that I am unlikely to be in any actual danger as I pass through US Immigration and Customs – just harassed, bullied, my luggage searched, a copy taken of all the data on my laptop, and treated like a criminal suspect because I’m entering the US.
No, no. I’ll go to Canada via a more civilised country, if I can’t get a direct flight.
Except, Turb, there is the war on terror — or whatever it is President Obama wants us to call it.
No, the whole concept makes no sense. Even if Obama insists that there is a war on terror, that doesn’t make it true. The term war carries with it legal powers and obligations; it has an actual meaning, and conflict with non-state actors isn’t it.
Take a chill pill, Smithee.
Take a chill pill, Smithee.
What does that even mean? Who the hell is Smithee? You know btfb, you can’t expect us to understand this inside baseball stuff….
He was referring to Alan Smithee’s unhinged comment at 12:23 PM, not to you.
Kevin Drum …
“I appreciate the outrage, but this is a genuinely knotty problem.”
Hilzoy is saying it is not a complicated problem? Taking something off (preventive detention per se) the table does not mean the solution is not a complicated problem.
“For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding.”
Is Hilzoy denying this?
“At the same time, they aren’t American citizens.”
Basic rights still apply. Likewise, there are something like 20 million people residing on U.S soil that are not citizens either.
“They were captured on a foreign battlefield, not U.S. soil.”
This means the world, under the new rules, rules that Obama nominees agreed apply when Sen. Lindsey Graham brought up the point. Kevin Drum misleads here.
“They are, essentially if not legally, prisoners of war in a war with no end. So what do we do?”
One problem is that Obama’s category has a catchall that is so wide that it is meaningless.
For instance, he cites Taliban leaders. A claim can be made that there is still some credible sort of “war” going on around Afghanistan. So, holding this sort of person for the time being is one thing.
Then, those are some who are quite in some fashion roughly “enemy combatant” sorts involved in some sort of war-like act, including an insurgent. We can again stretch “war” and “POW” (do they have the rights of one?), perhaps, to apply.
Others are involved in some unlawful combatant act. The terms so broad (for good or ill) it is unclear (except for tortured tainted testimony or vague evidence) why they cannot be prosecuted. The “American Taliban” is an example (victim?) of the breadth of this group.
Finally, there is some catchall “dangerous” sort, including those who pledge allegiance to certain groups. Someone up thread noted Obama’s category is not likely to include us. Yes, we are unlikely to be picked up let’s say in Bosnia or Pakistan.
But, there are literally thousands all over the place who might be in this category. Obama basically supports the power to selectively pick some, based on arbitrary reasons, and keep them indefinitely.
Simply put, process is not ‘due’ simply because it is authorized. It can be better, much better, but Hilzoy’s “outrage” (silly unserious soul!) remains correct.
I consider myself a pretty strong civil libertarian, and I don’t see a big problem with setting up a system to detain foreign enemies.
I am not persuaded by this “conviction or release” argument in this situation, because it is an assertion that ignores both historical and legal reality.
As far as I know, the Constitution has always allowed the executive to detain foreign combatants who are engaged in war on the US — POWs. And whether, where, and how long to detain POWs has always been the exclusive province of the executive and legislative branches, not the judicial branch.
While there are major differences between the current situation and a typical war, I think there are enough similarities that the power to detain POWs for the duration of a conflict can and should be applied to some of the al-Qaeda captives.
So I see no problem in created a quasi-POW status for those who have been making quasi-war on the US and would continue to make quasi-war on the US if allowed to be free.
Because this is based on the POW model, it would only apply to foreigners captured in foreign lands. But given the potential for abuse by an unchecked executive/military, I would grant additional legal protections to the detainees. So unlike the traditional POW model, I would require court review of each detention, periodically, both to ensure that the detainee is actually a threat, and to confirm that the “conflict” is still going on.
Oops! Thanks for the clarification, CharleyCarp. Should wait for the second cup of coffee to post…
“There is no war against AQ; AQ is not a state.”
Uh, the Clauswitzian definition of war as an action of nation states and Princes is fast becoming obsolete. Go read up on Van Creweldt, and the evolution of war and stateless actors.
ThirdGroucho, thanks for explaining.
Because this is based on the POW model, it would only apply to foreigners captured in foreign lands. But given the potential for abuse by an unchecked executive/military, I would grant additional legal protections to the detainees. So unlike the traditional POW model, I would require court review of each detention, periodically, both to ensure that the detainee is actually a threat, and to confirm that the “conflict” is still going on.
Saying you want additional court review doesn’t mean anything: you can easily arrange for the courts to rubber stamp indefinite detention. I mean, releasing people is always going to have higher political risks than keeping them imprisoned so the executive will always be pushing for continued detention. And as I explained above, no matter what AQ does, we will always be able to say that our conflict with them continues. And why do you think these prisoners will ever become less of a threat?
Uh, the Clauswitzian definition of war as an action of nation states and Princes is fast becoming obsolete. Go read up on Van Creweldt, and the evolution of war and stateless actors.
Do you mean that simply because Van Creweldt wrote a book, American and international laws magically changed? That must be some book!
In an ideal world, Obama would present the following options to Congress as potential places to relocate detainees:
1. Federal supermax prisons.
2. The Hague.
3. Dick Cheney’s house.
“only apply to foreigners captured in foreign lands”
Hmm … how about a Japanese airman captured after bombing a military target on our soil in the middle of WWII?
Anyway, as “PS” to my comments, Justice Jackson’s dissent in Korematsu comes to mind. Do we wish to “place in law under the Constitution” such rules, rules that will be applied by future Presidents too?
Normalizing this sort of thing is not without its costs.
Saying you want additional court review doesn’t mean anything: you can easily arrange for the courts to rubber stamp indefinite detention. I mean, releasing people is always going to have higher political risks than keeping them imprisoned so the executive will always be pushing for continued detention. And as I explained above, no matter what AQ does, we will always be able to say that our conflict with them continues. And why do you think these prisoners will ever become less of a threat?
If court review isn’t worth anything, why the big uproar over the Bush Administration’s attempts denial of habeas corpus relief to detainees like Padilla? Courts have already ordered detainees to be released or charged, and courts have freed people accused by the government of crimes.
Anyway, the “convict or release” argument has it backward, because it inaccurately assumes that the proper analogy is domestic criminal law. I think the proper analogy is international conflict, so the default presumption would be “the executive gets to keep whoever he wants for as long as he wants.” This historical legal power doesn’t go away just because liberals like us don’t like it. And because I’m not okay with such expansive power for the executive, I think court review is the best
Some of the issues here arise because we appear to be talking about two different things, there’s no concrete proposal yet, and all we have to go on is Obama’s speech.
The two different things are: people taken prisoner by U.S. personnel in the future, and men now in Guantanamo whose conviction is unlikely due to evidence against them being tainted by torture.
Adam: The legitimacy of a rule of law doesn’t turn solely on whether the law is harsh or soft, over- or under-deterrent, too specific or too prophylactic: the question is whether there is a predictable, definable, fairly- and equally-applied rule for everyone.
Anderson: no such regime should be permissible for U.S. citizens.
Can’t help but hear a real element of “Do it to Julia!” about that…
Is anyone here with the keys to the kitten?
Aside from the obvious cleanup needed, I can attest from experience elsewhere that AlanSmithee is never going to produce a single comment worth reading or responding to, in any of his sockpuppet outfits. Please do not feed.
“For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding.”
Yes, we all know this. The problem is with the “impossible to convict” part.
The only reason a guy like, frex, Khalid Sheik Mohamed would be “impossible to convict” is because our program of detention and torture has made any evidence we have against him inadmissible.
Absent that, I don’t see why we need special new categories of prisoner.
Someone takes up arms against you. You capture them. If they meet the standard of GC III Article 4 they’re a prisoner of war. If not, they’re a civilian. The decision of whether they are or not is to be made by a “competent tribunal”, which is almost certainly not equivalent to “the President”.
If they do not qualify for POW status they are entitled to humane treatment, and they are subject to the domestic law of the state that holds them.
That’s my understanding of the relevant international law. If I’m missing something, by all means fill me in.
We have tried, convicted, and currently hold Omar Abdel Rahman, Richard Reid, Zacharias Moussauoi, all militant Islamic terrorists. Sensitive information was involved in Rahman’s trial if not the others, and the trial proceeded successfully in spite of that.
There is nothing lacking in the criminal justice system that would prevent us from trying, convicting, and punishing any of these guys under plain old domestic law.
KSM and folks like him should be a freaking layup.
The only problem is the “impossible to convict” part. He’s impossible to convict because we’ve corrupted any piece of information we might use to convict him.
So, we have to make up some weird, novel, bullsh*t category of prisoner.
This thread unfortunately instantiates one of Glenn Greenwald’s fears about the effects of the Obama adminstration’s policies:
All those “progressives” in this thread arguing for “moderate” policies that make a supposed compromise between the rule of law and authoritarianism are great examples of the phenomenon that Greenwald is writing about.
Incidentally, what we’re discussing is not a system to detain foreign enemies. It’s a system to detain people accused by the president of being foreign enemies…though of course who could possibly imagine a situation in which a president would make such an accusation in bad faith?
Though our so-called conservatives may be more committed to undoing our civil liberties, it may prove to be the Nixon-to-China-ing of our so-called progressives who put the final nail in their coffin.
I’m not going to pretend I know how meaningful this is, because I don’t know. TPM has David Axelrod on video refusing to say that Obama does not retain the power to torture.
As usual, we are expected to trust and unable to verify. Not good.
Yes, that is exactly what all the “progressives” in this thread are advocating — indefinite detention without recourse. Precisely.
How is accusing people of accidentally supporting authoritarianism not an insult to their intelligence? And you’re really audacious enough to pass judgment on what constitutes “bad faith”? That’s absurd.
The only reason a guy like, frex, Khalid Sheik Mohamed would be “impossible to convict” is because our program of detention and torture has made any evidence we have against him inadmissible.
This is who I immediately thought of when I heard the part of the speech in question. What do we do with those like KSM, where there seems to be some evidence that he committed a crime, but any trial would be compromised by the torture used against him?
This speech was given in the context of closing Gitmo — much of it had to do with the prisoners there. However, Obama wants to set up a set of rules within the legal framework, for trying POWs, “enemy combatants”, whatever you want to call them. It’s this set of rules that he wants to pass to future presidents.
At least, that’s how I heard the speech.
[[jesu, why do you continue to set yourself up for an out-of-the-posting-rules reply?]]
“The Geneva Conventions recognize the right of resistance to foreign occupiers, but they most certainly do not recognize the right of a citizen of a third country to travel to the occupied country to fight. In the 19th century, that kind of behavior was called filibustering and was subject to summary execution.”
So, you’re saying that all the Americans, and other foreigners, who fought in China prior to November, 1941, should have been executed? Ditto the members of the Abraham Lincoln Brigade, and all the other foreign fighters in the Spanish Civil War? Ditto the Poles who dropped into Holland in Operation Market-Garden? Ditto the Free French who fought outside French territory?
Or what?
TP wrote:
“One possibility: he declares HIMSELF to be our enemy, bent on our destruction. He does not confess to having DONE anything yet, mind you — not even conspired with or “materially supported” people who have. And we cannot PROVE he has committed those crimes, either. He is merely a self-declared “enemy combatant” and proud of it. If such a person can be imagined, would he not be in essence a POW? There’s no moral dilemma about holding POWs, is there?”
The problem here is what is defined as being our ‘enemy.’ If someone is a radical leftist against capitalism, pax americana, or the social organization of society in general right now – should he/she be considered an ‘enemy’? Maybe thats not what you mean, but certainly (as we have seen) that is how most security apparatuses have been treating almost all forms of serious mass mobilizations that threaten to disrupt ‘normalcy’ in any meaningful way. I think its impossible to label someone an ‘enemy’ and treat them like a POW, especially when terrorism is a mode of behaviour (an action) as opposed to a mode of being (there is no large scale war going on right now between america and ‘terrorists’ – except in the ideological imaginary of the msm…so I don’t see how you can apply the same rules as you would to POW’s).
“I question the notion that we are or ever were at war with Afghanistan or Iraq”
What was it we were doing when we invaded those countries and overthrew their governments by military force, then?
“I suspect that the endgame here is a more accountable international court — unfortunately, the Bush Admin’s torpedoing of the ICC has made it a largely defunct institution”
Really?
“So I see no problem in created a quasi-POW status for those who have been making quasi-war on the US and would continue to make quasi-war on the US if allowed to be free.”
What criteria do we use to determine who does and who does not belong in this category?
“Because this is based on the POW model, it would only apply to foreigners captured in foreign lands.”
All foreigners in all foreign lands? So the U.S. would have the right to pick up anyone in the world who is not a U.S. citizen, in any country that is not the U.S.?
Because that seems kinda sweeping. Not to mention that the rest of the world might look askance. Is this a general right we should extend to all other countries of the world, or is this just one of those American exceptionalism things?
“I would require court review of each detention, periodically, both to ensure that the detainee is actually a threat, and to confirm that the ‘conflict’ is still going on.”
What standards would the court use? What rights would the defendants have? None? Any? Or what? What would be the criteria used to determine who is “actually a threat”? Is this a status that could change? If so, how?
I’m seriously trying to understand what people are proposing here as alternatives to existing law.
“TPM has David Axelrod on video refusing to say that Obama does not retain the power to torture.”
Axelrod says that Obama has signed an executive order banning torture, which is true. I’m unclear what are the magic words Axelrod didn’t say that he was supposed to say: could you clarify, please? Thanks.
I deleted all the “Jones” comments. If he resurfaces and does the same thing again, we’ll ban permanently
Yes, that is exactly what all the “progressives” in this thread are advocating — indefinite detention without recourse. Precisely.
How is accusing people of accidentally supporting authoritarianism not an insult to their intelligence?
I am certainly not saying that all the self-described progressives on this list are advocating for a system that allows for indefinite detention without recourse. Many are standing with hilzoy against this.
However, some are arguing for such a system.
Adam wrote the following (emphasis in the original) upthread:
I don’t see how that conception of legal legitimacy is incompatible with a system of indefinite detention without recourse.
Among of the most dangerous misunderstandings of the last eight years is the suggestion that the chief fault of the Bush administration was its incompetence. It certainly was incompetent. But the last thing we need is more competently run illegal, unnecessary wars of choice or more competently managed systems of torture or indefinite detention (and just to be clear, Adam, what you’ve written only seems to me to allow for the last of these things, though I suppose one might be able to have Dershowitz’s “torture warrants” as part of such a sytem, too).
Incidentally, what we’re discussing is not a system to detain foreign enemies. It’s a system to detain people accused by the president of being foreign enemies…though of course who could possibly imagine a situation in which a president would make such an accusation in bad faith?
No, that’s the difference between a proposal that requires court review and what the Bush Administration was doing. The Bush Administration claimed that if they accused and decided, the detainee had no right to seek court review, even if the detainee was an American citizen and even if he was captured in the US. Maybe I’m wrong, but I do not believe Obama has claimed this power. From what I can tell, under an Obama proposal the goverment would be able to accuse, but they still would have to prove that the legal standards for detention are met.
Gary, I don’t know the exact details of what standards a court would use, or how “POW” would be defined, or exactly what rights a defendant would have. But it wouldn’t be too hard to come up with reasonable answers to those questions. And as long as there are any standards, and the defendant has any rights, this is an improvement over the situation POWs have historically faced.
Are you suggesting that the government does not have a legitimate right to capture and detain POWs? Or that this right does not extend to non-uniformed members of a non-state entity like al-Qaeda? Or that the government has this right but should refrain from using it?
“What standards would the court use? What rights would the defendants have? None? Any? Or what? What would be the criteria used to determine who is “actually a threat”? Is this a status that could change? If so, how?”
My impression from the speech — they don’t know yet, but they’re planning to work out the details with Congress.
What was it we were doing when we invaded those countries and overthrew their governments by military force, then?
I think a more appropriate question would be: what have we been doing since the two months it took to overthrow those “governments”? Would you call that “war”? “occupation”?
Gary, your usual commitment to precision makes me doubt that you’d really defend the previous Administration’s claims that the various groups in Iraq and Afghanistan are/were contiguous with their previous governments. Even if that was the case, saying that we were “at war” with those governments is clearly inaccurate. The term “war” may be over- or under-inclusive, but the point is that it’s obviously inadequate.
Really?
Yes. The ICC lacks the credibility and operational capacity to do what we need it to do. The treaty structure itself is not horrible, but withdrawing from the treaty kneecapped the Court a long time ago. Joining now would be seen as a token gesture, and it would have to be rebuilt from the ground up anyway.
I’m seriously trying to understand what people are proposing here as alternatives to existing law.
The ICC is actually a good place to start, but the Convention could stand to be updated; the last nine years have yielded some hard-won experience that could inform the substance of a new international court. International terrorism is by definition a supranational problem that needs an appropriately-scaled solution. A Court that was sufficiently robust that we could send terrorist suspects there is a difficult though not unrealistic possibility. It beats Gitmo and solves a lot of the NIMBY and credibility problems to boot.
I wasn’t entirely joking earlier — if the Obama Administration really wanted to hold Congress’ feet to the fire, they would threaten to send the Gitmo detainees to the Hague and let the ICC deal with them; if Congress doesn’t like that, they can help come up with a better solution, but if Gitmo’s off the table they should contribute rather than stonewall.
Who is it, exactly, that it is “impossible” to try in the US criminal justice system?
Why is it “impossible” to try them there?
@Gary Farber: Look, I know I don’t know. But Axelrod refuses to say that Obama has declared the executive ordering torture is off limits — contrary to enforceable law. All he’ll say is that Obama has issued an executive order against it. Can he issue an executive order to allow it?
Now I suppose Obama may be doing this because he doesn’t want to be obligated to prosecute so he can’t very well announce that he thinks the conduct of predecessors was illegal. But many of us would be somewhat encouraged if he’d state that he thinks there are legal limits to the power of a president.
I don’t see how that conception of legal legitimacy is incompatible with a system of indefinite detention without recourse.
If detention is “indefinite” then presumably it’s not “definable,” which is the word I used. I would think it’s also not “predictable.”
I also imagine that “without recourse” is not compatible with a system that is open to criticism, but if that was unclear, consider it clarified.
Regardless, I’m not sure how that squares with your assertion that falling into Obama’s horrible horrible close-Gitmo trap is “Nixon-to-China-ism” (nor do I even know what the means; bucking your party’s orthodoxy? choosing diplomacy over militarism? All Comparisons To Nixon Are Bad?) — like your “phenomenon” or “may lead to” constructions, it strikes me as a smear tactic, but you can characterize it as you wish.
“I deleted all the “Jones” comments.”
thanks, publius. he was really stinking up the place.
” If he resurfaces and does the same thing again, we’ll ban permanently.”
really? he defaced, what, four or five threads with multiple pørn-links, and you still want to wait for more? what’s the wait for?
what’s the wait for
Largely b/c I couldn’t find the ban permanently button. 🙂
So, you’re saying that all the Americans, and other foreigners, who fought in China prior to November, 1941, should have been executed? Ditto the members of the Abraham Lincoln Brigade, and all the other foreign fighters in the Spanish Civil War? Ditto the Poles who dropped into Holland in Operation Market-Garden? Ditto the Free French who fought outside French territory?
Or what?
Gary, I believe filibustering applied only to private citizens acting without their government’s sanction. So maybe the Abraham Lincoln Brigade could have been considered filibusters, but not US military advisors to Chiang Kai Shek or Free French and Polish forces fighting alongside the Allies.
In any case, it doesn’t much matter since the term (and its penalty) fell out of use a long time ago and I am not advocating that we summarily execute captured al’Qaeda fighters.
However, I do think that making a distinction between captured locals and captured foreigners could be useful. For example, by treating captured Afghan Taliban fighters as formal POWs with all the attendant rights, but treating some captured AQ fighter from Pakistan or KSA as an unlawful combatant, we could possibly drive a wedge between them.
More importantly, I believe the modern concept of a pan-Islamic umma (as articulated by OBL and co.) is dangerous to the Westphalian state system that has provided the foundation for international relations since 1648. Bin Ladin’s ideology is the real enemy, and must be discredited. Encouraging nationalism in the Muslim world is the best way I can think of to accomplish that end.
But that’s a bit OT, so I’ll leave it at that for now.
Turbulance
Do you mean that simply because Van Creweldt wrote a book, American and international laws magically changed? That must be some book!
The nature of warfare changed regardless of whether you were paying attention or not. We are now struggling to adapt our laws to meet the new reality. War as a function of tribal identity and self actualization is quickly becoming the norm, and snide assertions that it only counts as “war” if there is somebody to declare it against (presumably with an ambassador to hand the declaration to…) seem increasingly bizarre as the body counts in stateless wars grow ever higher.
“really? he defaced, what, four or five threads with multiple pørn-links, and you still want to wait for more? what’s the wait for?”
The formal hearing to determine if he is in fact an illegal alien
combatantp0rnbotnet has yet to be scheduled. Are you suggesting he should be placed in preventivedetentionbanning?The nature of warfare changed regardless of whether you were paying attention or not.
Something just went over my head!
I think it was a drone!
If detention is “indefinite” then presumably it’s not “definable,” which is the word I used. I would think it’s also not “predictable.”
Detention for the duration of an essentially endless “War on Terror” (or whatever we’re calling it this week) is both definable and indefinite.
And what I meant by “Nixon-to-China-ism” is that just as it was politically easier for Nixon to make the opening to China because he was a Republican and a famous anti-communist, it would be easier for the Democrats to trade away our civil liberties in the name of national security, as they are seen as the party less willing to do that kind of thing.
I favor closing Gitmo and dealing with the detainees in the context of preexisting US and international legal institutions. I’m not sure what you mean by “Obama’s horrible horrible close-Gitmo trap.” It strikes me as a smear tactic, but you can characterize it as you wish.
Detention for the duration of an essentially endless “War on Terror” (or whatever we’re calling it this week) is both definable and indefinite.
Oh, so you’re saying it’s OK then? I’m not sure that counts as “predictable,” but if we’re using an external reference (an unpredictable one, as you point out), I suppose we could just dust off those Yoo memos and be done with it.
It strikes me as a smear tactic, but you can characterize it as you wish.
Yeah, it’s pretty much a smear tactic. It was a pretty bad argument to begin with, so that seemed like the appropriate response.
Apparently you meant that Democrats (actually, you said “progressives,” but whatevs, right? lol) are more prone to corruption than Republicans because they’re more credible on the issue. I would presume this is because there’s objective evidence that they are not, in fact, committed to those policies, but you can explain it how you like.
But if you think repudiating Bush’s policies is actually a sneaky backdoor way of facilitating them, go ahead and run with that. That’s not a falsifiable premise — hence your need to use the “may lead to” construction — so you’re not going to get a satisfactory response to it from anyone.
@ThirdGorchBro
Um, what? I’m sorry, this doesn’t work. You cannot cite GC as an authority justifying the power to detain individuals for the duration of “hostilities”, and then turn around and say that you’re only going to “more or less” acknowledge its authority to limit the power a state has over those prisoners. If GC is your justification for quasi-indefinite detention, then you’d best be arguing that such individuals should be treated exactly like POWs.
More importantly, I believe the modern concept of a pan-Islamic umma (as articulated by OBL and co.) is dangerous to the Westphalian state system that has provided the foundation for international relations since 1648. Bin Ladin’s ideology is the real enemy, and must be discredited. Encouraging nationalism in the Muslim world is the best way I can think of to accomplish that end.
Um, maybe you haven’t noticed, but the umma seem rather disinclined to unite politically. Just like Christians around the world are disinclined to unite politically. I mean, global Christian political unification is completely absurd and I see no reason to regard global Islamic political unification as any less absurd.
Thanks, ThirdGorchBro; sorry, I wasn’t clear on who needed to take a pill, Turb.
Re: “No, the whole concept makes no sense. Even if Obama insists that there is a war on terror, that doesn’t make it true.”
Yo, Turb, actually I was agreeing with you and agree with your point above (just didn’t make my “except” comment read cyncially enough, I guess).
Lol’d on the “inside baseball mention” — hard to believe that back-and-forth was just a couple days ago. When you are sitting here in a financial hell staring at an empty lot (no customers; lots of cars) . . . time . . . passes . . . really . . . slowly.
janinsanfran, I think you are conflating two different things:
1) Obama has signed executive orders that ban torture and extraordinary rendition. Because they are executive orders, he can in theory make up new ones, even secret ones as far as I am aware, essentially on whim. This is why government by executive order is a bad idea.
2) Obama is desperate not to get dragged into pressing for criminal prosecutions of the Dubya administration. Now I disagree with this decision of his, precisely because if we don’t prosecute administration lawbreaking then this and future administrations will correctly deduce that they aren’t bound by law. But you should recognize that this unwillingness to prosecute makes it very difficult for Obama and his staff to talk about the criminal laws barring prosecution: after all, if they say they can’t torture because of those laws the logical follow-up question is why they, believing this, aren’t calling for prosecution of members of the previous administration.
Because of the second point, it’s easier for them to simply dismiss torture legality questions with an invocation of the executive order, if they can. Their reluctance to cite the criminal law doesn’t mean they don’t see themselves as being bound by the criminal law – it could as easily mean that they are unwilling to risk sacrificing their administration to the uproar that would result from enforcing that law against the previous administration, even as they adhere faithfully to its restrictions. In the medium-to-long-run, a consistent lack of enforcement will erode the laws, which is why I disagree with their position – but it would be an error to overlook an entirely logical, if misguided, political calculation.
@Steve H:
IANACL. But:
Article I §8:
“The Congress shall have power […] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”
See also: Supremacy Clause
“@Gary Farber: Look, I know I don’t know. But Axelrod refuses to say that Obama has declared the executive ordering torture is off limits — contrary to enforceable law.”
I watched the clip, and I don’t see a point at which he “refused,” which is why I asked what the magic words you want to hear are. I’ll rephrase: what are the sentences that Axelrod spoke that you take as such “refusal”?
“All he’ll say is that Obama has issued an executive order against it. Can he issue an executive order to allow it?”
Of course he can. And he can issue an executive order to make the seas flow backwards, and gravity reverse. He can issue any executive orders he wants. The power to issue executive orders is unilateral and absolute.
The question you seem to wish answered is whether a federal court, and by extension, the Supreme Court, would uphold such an order if challenged, and the answer would depend on the phrasing of the order; if it was weasel-worded enough, yes; if not, no.
I’m not really following what it is you think Obama can do here beyond what he’s done. Get a more comprehensive bill against torture through Congress? Because he can’t issue an order binding himself from issuing another executive order, nor can he issue an order binding future presidents. He’s done what is within the capacity of the president: issued an order banning torture. What beyond this is it you’re asking for?
See also: Supremacy Clause
See also, e.g.: Boumediene, Youngstown, etc. etc.
Apparently you meant that Democrats (actually, you said “progressives,” but whatevs, right? lol) are more prone to corruption than Republicans because they’re more credible on the issue. I would presume this is because there’s objective evidence that they are not, in fact, committed to those policies, but you can explain it how you like.
Look, I’ll try this one more time: should Democrats (or self-described “progressives”) choose to do so, they will have an easier time than Republicans pursuing policies that trade away civil liberties in the name of national security. I do not think they are more likely to pursue such policies, merely that if they do pursue such policies they are less likely to be effectively challenged. However, there also happens to be plenty of evidence that the Obama administration is pursuing such policies.
But if you think repudiating Bush’s policies is actually a sneaky backdoor way of facilitating them…
No. To the extent that the Obama administration has actually repudiated Bush administration policies, I applaud them. I criticize them for their refusals to repudiate Bush administration policies on a whole series of issues, however. And I refuse to see these refusals as clever, 11th-dimension chess methods of repudiating Bush administration policies.
“Obama is desperate not to get dragged into pressing for criminal prosecutions of the Dubya administration.”
Sure, the President keeps saying he wants to move forward. But isn’t the Dick of Cheney making that difficult? At some point, doesn’t he have to take Cheney up on his “dare” and put the old crank out of his misery?
@ThirdGorchBro”
IANAILL. But:
3rd GC Article 4 §2:
Note that no mention whatever is made of the nationality of the combatants. All that need be is that they are a member of such a force belonging to a party of the conflict.
I don’t know if anybody has posted a link to this yet, but Jack Goldsmith at TNR published an article on Monday the jist of which is that Obama is continuing many of the policies of the latter half of the the Bush admin with better packaging for public consumption. However there was a shift in policy emphasis from the early Bush years (dominated by Cheney) to the late Bush years, so this is not the same as saying that Obama is continuing the policies of circa 2002-2004.
Ben: OK 🙂
I think your distinction between “they are not doing enough” and “they have a secret agenda” (the latter being a territory that Glenn too often strays into) is legitimate and important.
(With the caveat that I think the perfect is the enemy of the good and all that — but that’s a disagreement on policy; to me, the key thing is to avoid visiting one another’s intentions.)
(That said, there are some people whose intentions deserve to be visited — like Dick Cheney — but it’s often not a place worth visiting.)
Gary, to presume to answer for janinsanfran (on the basis of one of jan’s comments), Obama and members of his administration could alleviate concerns such as jan’s by saying the administration is bound by criminal law barring torture, a restriction that he cannot evade by simply changing his mind about executive orders, rather than only saying that they cannot torture because of an (inherently mutable) executive order. I’ve outlined above my understanding of why they likely don’t want to make such a statement, but I don’t a desire for such a statement is terribly mysterious.
Bedtimeforbonzo, as I took cares to state a couple of times in my comment, I am in fact in favor of prosecutions, to preserve our system of government. But I recognize the potential political price the administration might face if it prosecutes, and I don’t think Cheney’s political calculations here are wrong: it would take an awful lot more than Cheney has thus far done to make it politically less risky to prosecute his criminal actions than to debate him in the press, especially so long as Cheney remains a relatively ineffective spokesman.
TLT: Perhaps more disturbing is David Brooks criticizing Cheney — the fact that David Brooks says something that seems to make sense frankly sends chills up my spine, but, well, there it is.
“Gary, I believe filibustering applied only to private citizens acting without their government’s sanction. So maybe the Abraham Lincoln Brigade could have been considered filibusters, but not US military advisors to Chiang Kai Shek or Free French and Polish forces fighting alongside the Allies.”
The Flying Tigers weren’t U.S. government-sanctioned. Neither were American volunteers who joined the Canadian Armed Forces, or British Armed Forces. I was specifically referring, of course, to private individuals, not U.S.-government-sanctioned forced.
http://en.wikipedia.org/wiki/Flying_Tigers
As I recall, a lot of foreign volunteers fought in the American Revolution, too. Not to mention that there are a lot of American mercenaries around the world. Should Blackwater/Xe employees all be executed? (We could exclude those operating under a contract with the U.S. government.)
“In any case, it doesn’t much matter since the term (and its penalty) fell out of use a long time ago and I am not advocating that we summarily execute captured al’Qaeda fighters.”
I’m not following what point you were making by bringing this up, then.
“For example, by treating captured Afghan Taliban fighters as formal POWs with all the attendant rights, but treating some captured AQ fighter from Pakistan or KSA as an unlawful combatant, we could possibly drive a wedge between them.”
How so? The Pashtuns (quite reasonably) regard the Durand Line as an imposition of a foreign power (which it was); it drives through sets of villages of people of the same tribe, and same families. What sort of wedge do you think we can drive that isn’t already there, and isn’t already exactly one of the ongoing grievances they’re fighting about? They’re pissed off that foreign forces (such as the authorities in distant Kabul, or distant Islamabad) impose on them, separating them from their fellow tribal members; increasing that disparate treatment will help how, exactly?
“More importantly, I believe the modern concept of a pan-Islamic umma (as articulated by OBL and co.) is dangerous to the Westphalian state system that has provided the foundation for international relations since 1648.”
It strikes me as dangerous only to the extent adherents advocate military force to overthrow the existing political order.
Historically the papacy once similarly advocated universal political and military control over all of Christendom, but eventually they gave up the idea. The idea that all Catholics, or even all Christians, share a commonality, however, is no longer threatening, is it? Or the idea that there’s such a thing as the Jewish people, regardless of ethnicity?
I don’t see why the Ummah need be more threatening, if Muslims don’t regard it as a call to go to war to create a unified, universal, political state. (Which hardly any, statistically speaking, do.)
er, in my previous comment, ” I don’t a desire for such a statement is terribly mysterious.” should have been ” I don’t think a desire for such a statement is terribly mysterious.”
sorry.
The idea that all Catholics, or even all Christians, share a commonality, however, is no longer threatening, is it? Or the idea that there’s such a thing as the Jewish people, regardless of ethnicity?
Actually, depends on who you talk to. History seems to indicate that the notion of a unified religious state is threatening to those who perceive it (or claim to) — and that certainly has some very real consequences.
TLT: Perhaps more disturbing is David Brooks criticizing Cheney — the fact that David Brooks says something that seems to make sense frankly sends chills up my spine, but, well, there it is.
I had the exact same reaction. When David Brooks starts to sound sensible, it may be a sign that you’ve been wearing the Ring of Power for too long and it is time to take if off.
My interpretation is that we are now seeing the Brooks wing of the Village make a strategic decision to cut Cheney loose and throw him to the wolves, while tidying up Bush’s legacy by using Cheney as the scapegoat. The old “if only the Czar knew” trick.
“Gary, to presume to answer for janinsanfran (on the basis of one of jan’s comments), Obama and members of his administration could alleviate concerns such as jan’s by saying the administration is bound by criminal law barring torture, a restriction that he cannot evade by simply changing his mind about executive orders, rather than only saying that they cannot torture because of an (inherently mutable) executive order. I’ve outlined above my understanding of why they likely don’t want to make such a statement, but I don’t a desire for such a statement is terribly mysterious.”
I take your point, although I must say that it hadn’t crossed my mind that David Axelrod was somehow refusing to say that the Obama administration was bound by law. I didn’t notice that he did that. To be sure, I don’t know what he’d say if that precise question was put to him, but I’d be surprised if he said “no, we’re not bound by the law on torture.”
“History seems to indicate that the notion of a unified religious state is threatening to those who perceive it….”
A “commonality” isn’t at all the same as a unified political state.
“When David Brooks starts to sound sensible, it may be a sign that you’ve been wearing the Ring of Power for too long and it is time to take if off.”
Call it what you will, Brooks has been cozying up to this administration from the start.
“The old ‘if only the Czar knew’ trick.”
In the category of the exception that proves the rule, it’s not actually insanely hard to believe that in this case the Czar took rather a while to catch on to, or care about, some of the Vice-Czar’s ways. I don’t see that it tidies up the Czar’s legacy particularly, though.
“Fool me once, shame on — shame on you. Fool me — you can’t get fooled again” isn’t a particularly admirable legacy.
Glenn Greenwald cites this post in an interesting way.
All those “progressives” in this thread arguing for “moderate” policies that make a supposed compromise between the rule of law and authoritarianism are great examples of the phenomenon that Greenwald is writing about.
I’m not. At least, I’m not arguing for anything I didn’t argue for for all of the last seven years. I’ve always said that this is an international conflict with enough of the same characteristics of a war that, in many ways, it should be treated like one. In this case, that means holding POWs. I never argued that Bush didn’t have that power. Had he held these people AS POWS, WITH THE RIGHTS THAT THAT ENTAILED, my objection would have been far more muted than it was.
In practice, I think that the character of this conflict is sufficiently different from “war” that there should be some sort of review, preferably judicial, though it would involve far lower standards of evidence than a criminal trial. Those who are arguing that this is not a war, full stop, are burying their heads in the sand. It’s certainly something more than just a criminal conspiracy, so dealing with it exclusively through the legal process isn’t any better an idea. We need to use the tools available, and craft some better ones.
Nombrilisme Vide:
Note that no mention whatever is made of the nationality of the combatants.
Yes, there is. That’s what “belonging to a Party to the conflict” means. The Parties are the states at war, and their citizens belong to them. “Operating in or outside their own territory,” means that they are allowed to fight those that they are at war with in places other than within their own borders.
Gary:
The Flying Tigers weren’t U.S. government-sanctioned. Neither were American volunteers who joined the Canadian Armed Forces, or British Armed Forces. I was specifically referring, of course, to private individuals, not U.S.-government-sanctioned forced.
Well, yeah. The Flying Tigers were illegal combatants. I’d thought that that was pretty well established at the time. Under the Geneva Conventions, the Japanese were entitled to treat them as such. They weren’t allowed to horribly abuse them, and deserved punishment for that, just as the Bush administration does. This is not to say that I think that it’s morally justified, or even a good idea, to do so in all cases. It’s just that, legally, that’s the way the rules are written.
One thing that hasn’t gotten enough mention here is that it’s a political impossibility for Obama to say anything other than that he’s in favor of indefinite detention of some sort for some of the prisoners at Guantanamo, regardless of whether they can be successfully tried in a court of law. He’s already having trouble with Congress approving the shut down of the place. How do you think that’s going to go if the rules he lays out before the Senate include the proviso that Khalid Sheik Mohammed is going to be turned loose? It would turn into a fiasco. For better or for worse, you’re going to have to decide whether a plan for indefinite detention is worse than the status quo, because those are your two options.
Frankly, I’m not even on your side on this. I would be opposed to a plan that would turn KSM loose. Despite the fact that the last US government tortured him, I’m still confident that he’s guilty. The proper response to the torture would be to punish those who did it. If it takes a fudge to hold onto him, I’m in favor of it. As it happens, as I stated above, so long as we treat him as a POW, I don’t think it even requires a much of a fudge. It certainly doesn’t require steps beyond what I’m willing to take. Establish that this power to declare a POW is not absolute, and requires judicial confirmation. That works for me.
Great thread everyone…
I think that the old definition of war as being between two states is totally obselete and has been for half a centurey There is no question in my mind that a state of war can exist between a state and a non-state actor. This is to me so obvious as to not really require argument, but think of such examples as Mao tse Tung’s successful war against the duly constituted government of China or the FLN’s war against the french state in Algeria. Those were quite definitely wars, not crimes or rackets. There is no question that al Queda considers itself at war with the USA. Turbulence and others better face the facts.
If the war is the right frame to look at this issue, the issue is whether to consider the detainees POWs. Those who are not considered POWS get released, those who are get held until the war is declared over. We can leave it to military tribunals to determine who is and who isn’t a POW.
It also seems that those who are POWS can be also tried for war crimes, if you like. But that’s in addition to them being POWS.
We can also have courtsreview from time to time whether someone should be held. I’m OK with that.
Isikoff here provides no encouraging words.
This is not change I believed in.
The sources, all of whom asked not to be identified because of the White House insistence that the meeting was private
In both this and the NYT article hilzoy links there are 2-3 anonymous sources (“human rights advocates”) who are — so far — the only place we’ve heard the term “preventive detention,” as far as I can tell.
Again, is there anything to indicate that this is official policy rather than the characterization of the people in the private meeting? Because if so, I can’t find it.
Indeed, forgoing show trials (“the idea of criminal prosecution of at least one Bush-era official, if only as a symbolic gesture”) is surely the death knell of the rule of law in America. How will we ever pursue legal sanctions against terrorists without decent kangaroo courts? Woe, woe, woe…
“Frankly, I’m not even on your side on this. I would be opposed to a plan that would turn KSM loose. Despite the fact that the last US government tortured him, I’m still confident that he’s guilty. The proper response to the torture would be to punish those who did it.”
Are you opposed to the Miranda Rule in general?
“I think that the old definition of war as being between two states is totally obselete and has been for half a centurey There is no question in my mind that a state of war can exist between a state and a non-state actor.”
Setting aside that rebellions, civil wars, and wars of independence have always been recognized (if not always by the party being rebelled against) as wars, not just for “half a centurey,” you seem to be unfamiliar with the Third Geneva Convention, which has always recognized that wars take place between parties other than nations “armed conflict not of an international character.” See Articles 3 and 4.
Note that, as we’ve previously discussed here, and I’ve quoted at great length in the past, though not in recent months, the Third Geneva Convention imposes a great many obligations upon the authority holding the prisoners. See Section II. Internment of Prisoners of War.
@J. Michael Neal:
Yes, there is. That’s what “belonging to a Party to the conflict” means. The Parties are the states at war, and their citizens belong to them.
Two points. First, as I said, IANAL. My understanding is based on a moderately uninformed reading of the text.
Second, is there? That text strikes me as possibly ambiguous, though to my eye the most ready reading places “militias” and “volunteer corps” as the object of “belonging to” rather than “members”. This is consistent with the commentary I have heard on this section, as well as straightforward resolution of scope ambiguity. [NP [P NP [V NP]]] etc. rather than [NP [P NP] [V NP]] etc.
Again, IANAILL, so if you are, I defer to your understanding. However, in the past I have heard this passage cited as covering foreign members of resistance movements as well as natives, so I am reluctant to accept your say-so to the contrary barring personal expertise in IL or an authoritative third-party citation backing your interpretation.
Gary clearly you do not know what you are talking about because the technical term for the Geneva Conventions is “quaint”
THAT’S WITH A ‘Q’
Gah, screwed up my bracketing in the second diagram. [[NP [P NP]] [V NP]], not [NP [P NP] [V NP]].
Can we, really? The military commissions’ track records so far haven’t been that great – witness the infamous incident several years ago (it was in a This American Life episode) where the military commission consisted of unsourced classified allegations that the accused was all sorts of evil, and through an error the accused’s lawyer got hold of the guy’s actual file, which included a piece of paper saying, in essence, “we’ve got nothing on this guy, he’s no threat”. The commission ruled that they daren’t release him.
The problems with the POW model aren’t just that Al Qaeda will never surrender; there’s also the rather critical one that the people deny being militants and deny belonging to Al Qaeda in any meaningful way, and – your statement to the contrary – I rather doubt that we’ve often have the proof that would make a fair judge, ruling on a habeas petition, rule that an accused Al Qaeda member is subject to POW status.
One thing, though: I’d be greatly relieved if Obama would issue a statement that this kangaroo detention system would only be used for existing, Bush-era detainees, the people we swept up indiscriminately, held without evidence or proper records, and then marinated in hatred for seven years. The thing about this that most worries me, beyond the injustice to existing detainees never permitted to plead their innocence and the precedent of tolerating existing injustice, is the idea that it sets a precedent for future detentions, i.e. that it not only permits existing injustices but can give us future creation of additional, new injustices.
IANAL, but I seem to recall that the authority-friendly Roberts court recently eviscerated the Exclusionary Rule.
IANAL until the bar exam (hopefully soon thereafter, anyway), but Hamdan makes it pretty clear that, in the U.S. at least, the Geneva Conventions create a floor for detainee treatment, regardless of combatant status.
“Illegal combatants” (or whatever we call them) are treated differently, but there are still nonviolable conditions on their treatment.
btfb, sorry for jumping on you; my bad.
Adam, I was wondering if you have any answers to the questions I raised here and here?
From the Hamdan v. Rumsfeld plurality decision, Section V:
(emphasis in original)
“How do you think that’s going to go if the rules he lays out before the Senate include the proviso that Khalid Sheik Mohammed is going to be turned loose? It would turn into a fiasco.”
As a practical matter, that’s almost certainly correct.
“For better or for worse, you’re going to have to decide whether a plan for indefinite detention is worse than the status quo, because those are your two options.”
But I’m not the president, so I can afford to stand up for principle and ideals, and that’s my third option.
It’s necessary that there be people who do that, and not bow only to the-only-practical-options.
It’s always necessary.
Turb: that first question does not appear to be to me, but they seem similar at least; if the question is “what is the functional limit on detention?” then my immediate thought is that it’s a fact question.
That is, you raise the hypothetical of an AQ prisoner who changes their story — this strikes me as analogous to a prisoner who claims to be Don Corleone: it’s probably not probative evidence even in a RICO case.
The question is whether there is sufficient reliable evidence to charge someone for a terrorism-related crime; the fuzzy area, I suppose, is whether we detain people any longer than usual on charges of terrorism, but that doesn’t strike me as all that controversial. If the issue is constrained by practical issues like evidence collection then the prosecution could get, e.g., an automatic one-time extension as a default rule. That doesn’t necessarily entail infinite extensions without reason, which would clearly violate Boumediene‘s habeas protection.
Moreover, I don’t see how to interpret Obama’s speech as endorsing that option. Without more, it strikes me as disingenuous spin. As I said earlier, there’s a significant difference between “indefinite detention without recourse” and “preventive detention,” and that’s a pretty big gap to impute to the Administration based on the anonymous claims of some people in a 15-minute meeting.
Two additional points:
1. Even in our domestic courts, initial detention is not uniform — otherwise, bail amounts would not be discretionary. I am still unsure why everyone seems to be reading “preventive” as meaning “perpetual” rather than “preemptive.”
2. Likewise, in domestic prisons, recourse is limited — otherwise, parole would not be discretionary. I don’t see why limited, proscribed recourse is equivalent to “no recourse whatsoever.” Surely regular Congressional review is at least reasonably equivalent (if not preferable to) review by a parole board.
Essentially, it seems to me that most everyone is buying into Cheney’s false dichotomy. The fact that we have some procedural limits does not mean throwing all detainees out on the street; conversely, procedural limits themselves do not entail locking up all potential suspects and throwing away the key. This seems like quite a lot to impute on the basis of current information.
a very slippery slope down into totalitarianism and arbitrary arrest.
when i read some of this, at first I thought he was referring to all the former members of the bush-cheney administration!
“there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted…”
…or because evidence has been destroyed by the cia or its contractors etc etc
“I am not going to release individuals who endanger the American people..”
couldn’t have made a clearer case for rounding up cheney, bush and rice and shipping them off to The Hague
Actually, I want to come back to the RICO thing because that’s a really good analogy.
There are a lot of legitimate criticisms of anti-organized-crime laws. They sweep pretty broadly and there’s certainly the potential for prosecutorial abuse.
On the other hand, their value is also pretty clear: there are a lot of ways to game the courts, and without some help, you end up having to go after Al Capone on tax evasion.
(The pop culture analogy is probably between “The Untouchables” and “24” — unlimited police power sound cool in practice; in principle, it tends to go all Hoover/Nixon/Lord of the Flies in a hurry.)
Now, without taking a position on RICO, one thing you can say about it — to paraphrase a wise man — is that at least it’s an ethos. The profession to oversight and accountability is in itself preferable to its denial. It filters down into the institutional culture; it sets norms of behavior; it fixes the limits of public accountability. Disavowing the rules has the opposite effect.
Even if the rules themselves are problematic — as RICO undoubtedly is — the fact that they are intended to set predictable boundaries is important. Obama hasn’t proposed anything more objectionable than RICO and the fact that the previous Administration did everything it could to abuse the system doesn’t mean that rules themselves are a bad idea or that we should kill the messenger.
“If you really want to save American lives, ban cars and fast food.”
So true.
It wasn’t the loss of American lives on 9/11 that so deeply disturbed this country. Thousands of innocent Americans die from multiple causes every year. What turned this country insane after 9/11 was its assault on the American ego. To think that mere camel jockeys could actually outsmart and harm Americans — on American soil no less. Unthinkable!
The legitimacy of a rule of law doesn’t turn solely on whether the law is harsh or soft, over- or under-deterrent, too specific or too prophylactic: the question is whether there is a predictable, definable, fairly- and equally-applied rule for everyone
I hope you don’t really believe that. By that standard, hanging for wolf whistles and lewd comments is legitimate. That is in no sense an adequate standard; whether is law is harsh, inappropriate, or unconstitutional is absolutely critical to its legitimacy.
a very slippery slope down into totalitarianism and arbitrary arrest.
There are people who seem to want to pretend that we have never held POWs before.
Gary:
Are you opposed to the Miranda Rule in general?
This is close enough to being gratuitously inflammatory enough that I contemplated just not responding at all. I recommend that you go back and re-read my post, and grapple with the fact that I’m not talking about holding anyone in indefinite detention as a matter of criminal law, but rather as a party to a war.
But I’m not the president, so I can afford to stand up for principle and ideals, and that’s my third option.
It’s necessary that there be people who do that, and not bow only to the-only-practical-options.
It’s always necessary.
All right, but my comment is directed towards those who are getting angry about Obama. If we admit that, as a practical matter, Obama can’t get both, shouldn’t we spend our time getting mad at someone else?
@Adam:
1. Even in our domestic courts, initial detention is not uniform — otherwise, bail amounts would not be discretionary. I am still unsure why everyone seems to be reading “preventive” as meaning “perpetual” rather than “preemptive.”
Here’s my concern: we’re talking about holding them as PoWs (well, sorta mostly) in a war against an abstract concept. So when is it done? Ever? Even if we round up or kill everyone professing allegiance to even the most abstract formulation of AQ’s vision, we’ll still have a ready core in our dangerous preventative detainees… so if we release them, AQ’s back! No, seriously. I say that glibly but I have no doubt it would be argued in earnest were the “war on terror” ever one day “won”. Which is to say, I think we can ignore the PoW comparison in terms of attempting to posit duration of detention.
So what are we left with to prevent “preventative” from being “perpetual”? We’re left with some sort of periodic review to assess if a detainee is “still a threat”, then? I cannot in all honesty believe that there is the least chance many of the detainees will ever be deemed “safe” to release, unless and until they are grey and feeble… if then. Take, e.g., KSM. It is popular wisdom that we have copious amounts of (tainted) evidence against him… evidence which won’t stand up in court, but is surely good enough for such a status review (else he’d presumably be released right from the get-go). Lacking a “natural” bound to their detention, some periodic review would be the only possible termination of their detention. What substantial reason do we have to believe that this would ever change for him or his peers? If there is none, we are in fact discussing perpetual detention w/o trial.
We all remember KSM’s mugshot. It is almost the exact opposite of a photo showing an enemy soldier in uniform captured on the battlefield. As far as I know, he was not captured by the US military. I forget whether it was the CIA or the FBI that snatched him, but I seem to recall he was “arrested” in Karachi with the acquiescence, if not the aid, of the Pakistani government whose citizen he is. I could be wrong, but I think he was suspected of terrorist acts even before 9/11, presumably on SOME evidence.
All that would seem to make KSM an unlikely candidate for POW status. Kidnap victim, possibly. Apprehended criminal, almost certainly.
The only complication would seem to be that “the constable has blundered” in his case. Was the blunder torturing KSM, or was it torturing Abu Zubeyda? Zubeyda’s FBI interrogator has said that Zubeyda fingered KSM in ordinary interrogation BEFORE any torture happened. We don’t know whether that’s true; we dont know whether “fingered” means telling the FBI merely KSM’s address or testifying to personal knowledge of crimes committed by him. But these would seem to be the kinds of questions ordinary criminal trials are designed to answer. Perhaps an ordinary trial is now legally impossible, thanks to the sadistic incompetence of the Bushies.
If so, I go back to my original question: if KSM now DENIES his allegiance to al-Qaida, IN OPEN COURT, what happens? Does al-Qaida welcome him back? Does Pakistan take him back as an honored martyr? Does he contest repatriation to Pakistan because they’re likely to try him and hang him?
If he PROCLAIMS his allegiance to al-Qaida in open court, does the fact that he was waterboarded by the CIA on Dick and Dubya’s orders automatically get him acquitted of any possible charges?
I ask these questions in all sincerity. I don’t know the answers. I just think KSM is a poor example of someone who might fit the “preventive detention” category. And if HE doesn’t, who the hell does?
–TP
All that would seem to make KSM an unlikely candidate for POW status.
Again, the meaning of the term “war” is changing. Yes, it could be perpetual detention. Given that KSM masterminded an act of war without claiming the authority of being a state actor, my heart bleeds. If he wanted a war by the old rules, he should have stuck with the old rules.
For the life of me, I still can’t understand why we want to keep guys for which we lack sufficient evidence to convict in a real court (or UCMJ tribunal) imprisoned. I mean, our government has consistently lied about, well, everything relating to terrorism and war. Which means that statistically, at least some of the alleged bad guys are probably completely innocent people who pissed off powerful locals. And the ones who are real AQ are going to be useless after we release them: their operational knowledge is half a decade out of date and they’re probably so psychologically damaged that they’d fall apart when confronted with a traffic jam let alone a complex operation.
Beyond that they’re untouchable: if you worked for AQ, would you get within a 100 miles of an AQ guy who was voluntarily released by the US government? How could you ever trust him? How could you ever be sure that he hadn’t been turned or mind controlled or injected with a secret tracking device? You couldn’t. These people would be completely radioactive if we ever released them. In fact, if the government released them and then leaked a story to the NYT about how they injected them with a secret invisible tracking agent, hillarity might ensue. Or AQ might cut them into millions of little pieces looking for the damn things.
Even if I thought it made sense to create a bizarre totalitarian legal system, how would these losers possibly justify the man hours needed to do so? What the heck do we gain from keeping them? Is there any gain besides the fact that releasing them is political suicide? And if that’s the real issue, then why are we pussyfooting around: it doesn’t matter what crazy legal categories we invent, these people must be imprisoned because the people of the United States cannot tolerate their release. We should have the stones to just admit that openly instead of pretending that they pose some sort of threat to us.
Obama has had these guys on ice for years; the notion that he needs a few one-time temporary delays seems a little silly.
The dust bunnies in my closet work for AQ. Guess I better burn the whole house down.
Turbulence: For the life of me, I still can’t understand why we want to keep guys for which we lack sufficient evidence to convict in a real court (or UCMJ tribunal) imprisoned.
Well, for Obama, I think there are three or four reasons:
1. If he releases them, he has to deal with a right-wing media circus, in which he’s the gladiator and no one is going to give him the thumbs-up. Doing the right thing regardless of political cost is just not Obama’s style, and while releasing them would absolutely be the right thing to do, it carries with it the cost that, to people for whom he’s already the natural target as a black President and a Democratic President, he will turn into the same kind of vilified hate-object as Hillary Clinton.
2. If he releases them, just for his political survival, he has to make clear that he is doing so because, regardless of what they did before they were imprisoned, their years of extra-judicial imprisonment and torture have ensured that no court in the US could convict them of any crime. And that’s a clear step towards charging Bush & Co with the crimes of extra-judicial imprisonment and torture, and Obama does not want to take any steps in that direction.
3. There’s only a few hundred of them, they’re not white, they’re not American, they’re Muslims, and they’ve been accused of monstrous crimes. Very few people are going to care as a point of principle that they should be released. I have no idea if Obama is one of those people or not, but see (1).
4. Bush merely asserted that on his sayso, any one in the world – US citizen or not – could be defined as an “illegal combatant” to whom anything whatsoever could be done. There was no legislative framework behind this, it was a clear absurdity. But if Obama legislates this principle – that it is possible under a form of law to declare someone effectively a “nonperson” who can be imprisoned indefinitely without habeas corpus or any other civil right, that could be an extremely useful permanent resource for Obama and future Presidents. See FISA. Which, of course, Obama would only use on the really bad people.
That’s what I think, anyway.
@JMN:
Again, the meaning of the term “war” is changing. Yes, it could be perpetual detention. Given that KSM masterminded an act of war without claiming the authority of being a state actor, my heart bleeds. If he wanted a war by the old rules, he should have stuck with the old rules.
…and wars simply didn’t happen before the rise of the modern nation state, and after non-state actors certainly never orchestrated focused campaigns of violence against them, but 7.5 years ago Everything Changed!
I’d agree that the meaning of the word “war” is being changed, but I call shenanigans on vaguely helpless “that’s-just-how-it-is” formulations making it sound as if the alteration of its meaning was not a deliberate, willful act of policy. And I see no reason to deem the guided “semantic” drift you advocate to be necessary, let alone desirable.
Nombrilisme Vide: You say “we’re talking about holding them as PoWs (well, sorta mostly) in a war against an abstract concept”.
The war isn’t anymore “against an abstract concept”. Although the Bush administration referred to the “war on terror”, the Obama administration does not. The initial AUMF (Congressional war authorization) specified that “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
That would not have authorized the invasion of Iraq, for example, except that Bush Cheney lied. So, Obama, not carrying forward the lies, does have a more specific mission. Granted, it’s not as specific as it should be, and I wish that the actual end point were better defined. But it’s not “war against a concept” anymore.
Not sure if this has been mentioned here yet but preventative, and even indefinite, detention of violent sexual predators has been upheld by the SCOTUS and is practiced in some states already. It became popular in the 90s.
From wiki:
“Some U.S. states have a special status for criminals designated as sexually violent predators, which allows these offenders to be held in prison after their sentence is complete if they are considered to be a risk to the public.”
You should be able to google for more on this practice.
Kansas v. Crane is the relevant sexual predator case. The “sexual predators” are given a hearing and have to be determined to be candidates for civil commitment due to a significant degree of lack of control. Again, not “preventative detention” in any sweeping sense, but detention in line with civil commitment due process protections.
“I am still unsure why everyone seems to be reading ‘preventive’ as meaning ‘perpetual’ rather than ‘preemptive.'”
Is one better than the other? Don’t they both smack of “Minority Reporting” our principles and our way of life?
Meanwhile, JMN notes that it’s not like we’ve never held POWs before. And if as he or someone else said, it would be foolish not to acknowledge we are at war with A-Q. Then, by that logic, KSM and the like are POWs.
However: (1) If this we have indeed been at war since 9/11, then purusing war crimes should be incumbent for President Obama, not open to debate. (2) And if acts of terroism — no matter how great the atrocity — are acts of war, then the POWs held as a result of these acts, this war, will be held in perpetuity. Forever. Because terroism will be with us Forever.
Also, the Great Obama’s speech the other day no doubt was intentionally vague the other day. That makes it easier for him to continue the Bush-Cheney policies if he sees fit — or expand them.
@Turbulence
Beyond that they’re untouchable: if you worked for AQ, would you get within a 100 miles of an AQ guy who was voluntarily released by the US government? How could you ever trust him? How could you ever be sure that he hadn’t been turned or mind controlled or injected with a secret tracking device? You couldn’t. These people would be completely radioactive if we ever released them. In fact, if the government released them and then leaked a story to the NYT about how they injected them with a secret invisible tracking agent, hillarity might ensue. Or AQ might cut them into millions of little pieces looking
All this sounds somewhat reasonable, but AQ may have have a different view. This is an organization that has a totally different view of reality than you. KSM may be welcomed back as a hero and a martyr to the cause, and sent right back out to kill more Americans. There is a technical term for people who contemplate the release of KSM and people like him. The technical term is crazy-bats###t crazy.
Luckily, Obama isn’t anything like that, so we will have some system of preventive detention
Even if I thought it made sense to create a bizarre totalitarian legal system, how would these losers possibly justify the man hours needed to do so? What the heck do we gain from keeping them?
How about stopping them from trying to kill us? That a good enough reason for you? Again , if a military tribunal determined that these guys are truly not a danger, that’s one thing. But then there are guys that the military views as potentially dangerous who can’t be convicted in a criminal court of law. Those guys we hold on to. The law of war says we can.
Indeed during good ol’ WW2, that’s what we did.
stonetools, thank you for pointing out that this isn’t a domestic criminal case. It might have been treated as one if it had been seen as one from its incipience, but it wasn’t. It’s a war now.
In an earlier comment I explained why: AQ can never be eliminated so the government can (and will) always claim that AQ is still present and still a threat. The periodic judicial reviews have literally nothing to review that can change over time except the prisoner’s opinion and for political reasons we cannot give credence to that:
Let’s stop playing games here: no matter what AQ does, the “war” can be said to continue. Even if Osama bin Ladin goes on TV and apologizes before turning himself in to the US Embassy, there will always be some person somewhere who can claim “I am AQ and I will continue the fight!” The conflict cannot end. States can capitulate but decentralized franchise operations cannot.
I mean really now: what do you think that periodic review will consist of? Will a commission review the admissions made under torture against the detainee? Or will it review the rumor and heresay against him that would never be allowed in a civilian court or under the UCMJ? None of that is going to change, so if it was good enough to keep the detainee in preventative detention to start with, it will still be good enough to keep him in detention indefinitely. Right? The only thing that can change is whether the detainee says he’s part of AQ…but if a detainee changes his tune in that regard, we’re not going to believe him, so even that doesn’t matter.
All this sounds somewhat reasonable, but AQ may have have a different view. This is an organization that has a totally different view of reality than you.
If AQ weren’t seriously concerned about American threats to their organization, they’d be completely dead right now.
KSM may be welcomed back as a hero and a martyr to the cause, and sent right back out to kill more Americans. There is a technical term for people who contemplate the release of KSM and people like him. The technical term is crazy-bats###t crazy.
Sent back to kill more Americans? Why should that worry me? AQ has lots of foot soldiers. Why should I care about the addition of one more? I mean, if I lose the ability to do basic arithmetic, I can see why adding one to a very very large number might be a huge problem, but since I have a functioning brain, it doesn’t really bother me.
How about stopping them from trying to kill us? That a good enough reason for you?
No. Lots of people are trying to kill us. Grow up. Get a pair. Stop being willing to throw away every aspect of civilization because you can’t control your own fear.
Again , if a military tribunal determined that these guys are truly not a danger, that’s one thing. But then there are guys that the military views as potentially dangerous who can’t be convicted in a criminal court of law. Those guys we hold on to. The law of war says we can.
This is a lie. A proper military tribunal would have been a court martial under the UCMJ. The UCMJ rules of evidence are much easier for a prosecutor to satisfy than traditional criminal rules. And the people sitting judgment would be American military officers. But the Bush administration correctly decided that a bunch of American military officers would not convict KSM even under the prosecutor-friendly UCMJ rules. That’s how crappy the case against him is.
Heck, he hasn’t even been convicted in the kangaroo court tribunal system that Bush set up.
However: (1) If this we have indeed been at war since 9/11, then purusing war crimes should be incumbent for President Obama, not open to debate.
I agree, but Obama’s clearly placing his domestic agenda over the interests of justice. I don’t agree with the choice, but I don’t envy his needing to make it, either.
(2) And if acts of terroism — no matter how great the atrocity — are acts of war, then the POWs held as a result of these acts, this war, will be held in perpetuity. Forever. Because terroism will be with us Forever.
Well, this is why we hear about “preventive detention” rather than POW camps — b/c the situation is a new one.
One problem is that holding any questionable person for years seems likely to make him *more* likely to hate and oppose the U.S., not less. So the “periodic reviews” would seem unlikely to justify anyone’s release.
The idea may not work out ultimately, but it’s worth addressing — PROVIDED we get a lot more facts from Obama. What, particularly, justifies PD? Whom are we looking at PD for? Who’s going to make these calls? With what checks and balances? etc.
“Again, not ‘preventative detention’ in any sweeping sense, but detention in line with civil commitment due process protections.”
The KGB and Soviet Union, as well as the Gestapo in Nazi Germany, had all sorts of nice due process protections, too — on paper. They both gave all sorts of careful lip service to legality, and protections of the individual. Perhaps this is forgotten now, by people who haven’t read the history thoroughly enough.
The imprisonment of “sexual offenders” past their sentences is an abomination, as is the practice of putting people on lifelong “sexual offenders” lists (I’d say “no matter how insignificant their offense,” but the concept is wrong as regards anyone.)
“the Great Obama’s speech”
What’s the point of this sort of usage? Has anyone here referred to “the Great Obama”? Does anyone? Isn’t this as juvenile as calling Bush names, or calling anyone names?
(Okay, lots of people do this; I’ve always thought it just makes lots of people look like they have the maturity of an eight-year-old; name-calling isn’t an argument, and makes one look like one doesn’t have an argument. IMO.) (And, yes, I’ve always objected to it as regards Bush, Cheney, and Republicans, or anyone, in exactly the same way.)
“KSM may be welcomed back as a hero and a martyr to the cause, and sent right back out to kill more Americans.”
He wouldn’t seem to be in shape to do any such thing. Nor would he exactly easily blend into a crowd.
“There is a technical term for people who contemplate the release of KSM and people like him. The technical term is crazy-bats###t crazy.”
This is notably not an argument; it’s the logical fallacy of begging the question.
“How about stopping them from trying to kill us?”
Which “them”? Most of the people at Guantanamo were found to be completely innocent; that’s why hundreds were released. Of the rest, while some are undoubtedly guilty, none of had fair trials to determine that. You’re asserting the right of the executive to unilaterally decide who is guilty of being a terrorist? How do you know that a future government wouldn’t decide that that’s a member of your family? What would the basis be for their not so deciding? Is your argument “trust the government to only pick on guilty people”?
“Indeed during good ol’ WW2, that’s what we did.”
In “good ol’ WW2” we applied the Geneva Conventions: are you advocating that we do this with “the terrorists”? Give them canteens, and a rate of pay,the right to mail, guarantees from a Protecting Power, visits from a Neutral Power, relief shipments, elected representatives, a Mixed Medical Commission, ranks and titles, saluting of their officers, rights to prisoner ministers, “opportunities for taking physical exercise, including sports and games, and for being out of doors,” the right to, when questioned, “when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information”?
Because we’re obligated to do all these things, and more, for prisoners of war, you know.
” . . . b/c the situation is a new one.”
Yes and no.
A-Q may be new, relatively speaking.
But terroism, in one form or another, has been around forever.
So “this is why we hear about ‘preventive detention’ rather than POW camps” doesn’t wash completely.
Shouldn’t the debate we are currently having been had — or resolved — long ago? Of course, the blame for that goes to Bush-Cheney. But the ball has been in President Obama’s court now for 100-plus days and counting.
And going back to the point that terrorism has been around forever — even on our shores before 9/11, but that being the event that triggered the “war” — why has this been such an ongoing political football in this country? I mean, what do the British do? How about Israel? Is there an easy answer that we just aren’t seeing?
I’m just thinking out loud, Anderson, as I agree with much of what you are saying, especially: “The idea may not work out ultimately, but it’s worth addressing — PROVIDED we get a lot more facts from Obama. What, particularly, justifies PD? Whom are we looking at PD for? Who’s going to make these calls? With what checks and balances? etc.”
” . . . b/c the situation is a new one.”
Yes and no.
A-Q may be new, relatively speaking.
But terrorism, in one form or another, has been around forever.
So “this is why we hear about ‘preventive detention’ rather than POW camps” doesn’t wash completely.
Shouldn’t the debate we are currently having been had — or resolved — long ago? Of course, the blame for that goes to Bush-Cheney. But the ball has been in President Obama’s court now for 100-plus days and counting.
And going back to the point that terrorism has been around forever — even on our shores before 9/11, but that being the event that triggered the “war” — why has this been such an ongoing political football in this country? I mean, what do the British do? How about Israel? Is there an easy answer that we just aren’t seeing?
I’m just thinking out loud, Anderson, as I agree with much of what you are saying, especially: “The idea may not work out ultimately, but it’s worth addressing — PROVIDED we get a lot more facts from Obama. What, particularly, justifies PD? Whom are we looking at PD for? Who’s going to make these calls? With what checks and balances? etc.”
“What’s the point of this sort of usage?”
Make of it what you will, perhaps that is the point.
“Has anyone here referred to ‘the Great Obama’?”
I have.
Semi-related and worth reading, although you probably won’t thing so, Gary.
Gary: “The imprisonment of ‘sexual offenders’ past their sentences is an abomination, as is the practice of putting people on lifelong “sexual offenders” lists (I’d say ‘no matter how insignificant their offense,’ but the concept is wrong as regards anyone.)”
I agree with this completely. I’m not as sure I disapprove of all civil commitment proceedings, and I certainly don’t think all can be compared with the KGB.
“Semi-related and worth reading, although you probably won’t thing so, Gary.”
It was more so before the fourth time you linked to it.
“…and I certainly don’t think all can be compared with the KGB.”
Neither do I; I was simply pointing out that nice guarantees and pretty words on paper aren’t worth anything if there’s no spirit to live up to them.
“It was more so before the fourth time you linked to it.”
Didn’t know you had checked it out. (Acutally, the third time, but who’s counting?)
Sapient, if you think the courts should release known murderers on legal technicalities, why do you think we must keep alleged terrorists imprisoned indefinitely when we have no real evidence to convict them? Or do you advocate for the abolition of the exclusionary rule?
“b/c the situation is a new one.”
Around the turn of the last century, and lasting at least through the 20’s, the US was subject to a fairly steady stream of acts of terror from anarchists living in this country.
“Acts of terror” includes the assassination of a President, two attempts on the life of the Attorney General, a coordinated bombing campaign in which 30 bombs were set off in one day in different cities, and a bomb set off on Wall St at noontime which killed 38 and wounded 400.
Much of this was against the background of the Russian Revolution, which understandably made a lot of folks quite nervous.
The response was the Palmer Raids, the deportation of suspected anarchists, the Sedition Act of 1918, and the Anarchist Exclusion Act.
One of the folks deported was Luigi Galleani, who openly called for the violent overthrow of the US government, and who provided bomb-making instructions in a newsletter he published.
He wasn’t waterboarded, chained to the ceiling, beaten to death, “walled”, or stripped naked, doused with cold water, and left in a cold room. They just sent him back to Italy.
The disclosure of abuse of prisoners (including alleged torture) and other illegal actions under the color of the Sedition Act and the Palmer Raids caused the Sedition Act to be overturned two years later, and likely cost Palmer a Presidential nomination.
The nation, faced with a regular diet of anarchist bombings over a period of years, overreacted. By “overreacted”, I mean we adopted laws and procedures that violated our own Constitution. Within a couple of years we regained our sense of balance and overturned those laws and practices, in spite of the fact that the bombings themselves didn’t actually stop.
That was then, this is now.
Turbulence, No, I don’t advocate for abolition of the exclusionary rule. And if Obama set the terrorist suspects free, I would commend him. I just don’t condemn him for not doing so at this time because I don’t think the prisoners are necessarily entitled to the same protections as criminal defendants. Certainly I’m trusting that Obama has compelling information (if not trial-worthy evidence) that these people are a threat and weren’t just bystanders caught in the fray.
Obama doesn’t even have his justice department together yet – there is a planned filibuster of Dawn Johnsen, etc., as well as any Supreme Court nominees. He has to walk a lot of political tightropes and it won’t help the cause of justice in the long run for him to be accused of “endangering America” by “setting terrorists free”. If his system fails to withstand Constitutional scrutiny, they’ll be released.
I know there’s a limit to political pragmatism, and I know you think the election has been won and we don’t have to worry about the opposition gaining ground anymore. I disagree. I believe that there is another “perpetual war” against Dick Cheney and his admirers. I’m willing to give Obama a pass for awhile (and I don’t believe that he’s trying to institutionalize Bush-style justice).
“He has to walk a lot of political tightropes and it won’t help the cause of justice in the long run for him to be accused of “endangering America” by “setting terrorists free”.”
The cause of justice is furthered by treating people justly.
Period.
There is no other course of action that will further the cause of justice.
No matter what Obama says, does, or thinks, his opponents will do their best to crucify him for it. He seems like a guy with the wherewithal to tell the lot of them to piss off, and that is what he should do.
I’m not happy with the idea of holding people as POWs indefinitely in a war that never ends. On the other hand, I think it’s wrong to argue that a periodic review would always find that there is still a need to continue to hold a person. It’s not like there’s no precedent for our government to conclude that some members of an anti-US terrorist group no longer pose enough of a threat to continue to detain them, even thought the initial detention was justified. See also the former South African government w.r.t. Nelson Mandala.
[[The cause of justice is furthered by treating people justly.]]
In the long term, yes. If, however, Obama doing the right thing leads to another Republican take-over of Congress, how does that further the cause of justice, exactly?
============
BTW, Gary, for any of your “outside agencies coming into an occupied territory”, if they were caught and convicted, they should be punished accordingly. “But they were fighting the Nazis!!!OMG!!!” does not strike me as the primary objection to the rule.
“‘But they were fighting the Nazis!!!OMG!!!’ does not strike me as the primary objection to the rule.”
Yes, we should definitely condemn premature anti-Nazis, and premature anti-fascists. What were they thinking?
(The Flying Tigers, incidentally, weren’t fighting Nazis; the Abraham Lincoln Brigade was doing so only very indirectly; they were merely fighting fascists.)