"Preventive Detention" And Prisoners Of War

By Big Tent Democrat, Section Terror Detainees
Posted on Fri May 22, 2009 at 10:29:59 AM EST
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Glenn Greenwald writes:

In the wake of Obama's speech yesterday, there are vast numbers of new converts who now support indefinite "preventive detention." It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of "preventive detention" and Obama's related detention proposals (military commissions).

I hope by now my ability to disagree with and criticize President Obama is not questioned. Thus, when I say that I think there may be merit in a detention regime (the military commissions proposal seems fatally flawed to me as described) that detains known combatants in a manner that is compliant with the Constitution and the Geneva Convention, I hope my argument can be addressed seriously. I do not think Glenn's post considers the possibility that President Obama's proposal may in fact be such a Geneva Convention compliant detention regime. See also Kevin Drum. More . . .

Glenn writes:

It's important to be clear about what "preventive detention" authorizes. It does not merely allow the U.S. Government to imprison people alleged to have committed Terrorist acts yet who are unable to be convicted in a civilian court proceeding. That class is merely a subset, perhaps a small subset, of who the Government can detain. Far more significant, "preventive detention" allows indefinite imprisonment not based on proven crimes and or past violations of law, but of those deemed generally "dangerous" by the Government for various reasons (such as, as Obama put it yesterday, they "expressed their allegiance to Osama bin Laden" or "otherwise made it clear that they want to kill Americans").
That's what "preventive" means: imprisoning people who the Government claims are likely do engage in violent acts in the future because they are alleged to be "combatants."

Once known, the details of the proposal could -- and likely will -- make this even more extreme by extending the "preventive detention" power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a "combatant." After all, once you accept the rationale on which this proposal is based -- namely, that the U.S. Government must, in order to keep us safe, preventively detain "dangerous" people even when they can't prove they violated any laws -- there's no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly "dangerous" combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S.

(Emphasis supplied.) Glenn portrays the power to indefinitely detain "alleged combatants" as something new. Clearly in a theater of war it is not. (Glenn's objection appears to be more directed at the scope of the "theater of war." And yet, the reality is that terrorists do operate all over the globe. In effect, there is an expanded "theater of war.) We used to call such detainees prisoners of war, and the Geneva Conventions applied to such detentions.

To me that is the key point to answering Glenn's question "when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it[?]" I opposed it BECAUSE the Bush Administration insisted that the Geneva Conventions did NOT apply to the detentions.

This is no small matter. It is important to remember that the key point of contention on detention policies was the application of the Geneva Conventions and the Constitution. For example, in Hamdi v. Rumsfeld, the issue was presented thusly:

This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an “enemy combatant,” and that this status justifies holding him in the United States indefinitely–without formal charges or proceedings–unless and until it makes the determination that access to counsel or further process is warranted.

In essence, the Bush Administration denied the applicability of the Geneva Conventions, but of course the case turned on the applicability of the habeas statute then in effect. But the concept is not dissimilar to what is mandated by the Geneva Conventions. For example, the Hamdi Court described it this way:

In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive’s asserted justifications for that detention have basis in fact and warrant in law. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Addington v. Texas, 441 U.S. 418, 425—427 (1979). He argues that the Fourth Circuit inappropriately “ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely,” Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be “meaningful judicial review.” App. 291.

The Bush Administration argued that the courts had no say in the matter. The Court rejected the Bush Administration argument:

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’ ” (quoting Ward v. Monroeville, 409 U.S. 57, 61—62 (1972)). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ ” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.

Of course the devil is in the detail of the process that would be afforded a detainee. In Boumediene v. Bush, the Supreme Court found the Bush Administration's Combatant Status Review Trials to be inadequate constitutionally. The Court presented the question in this fashion:

[T]he question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeals, see DTA §1005(e), provides an adequate substitute. Congress has granted that court jurisdiction to consider

“(i) whether the status determination of the [CSRT] … was consistent with the standards and procedures specified by the Secretary of Defense … and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” §1005(e)(2)©, 119 Stat. 2742.

The answeer was no - the Bush Administration's review did not comply with the Constitution:

We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.

. . . For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting. See Townsend v. Sain, 372 U. S. 293, 313 (1963) , overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1, 5 (1992) . Here that opportunity is constitutionally required.

(Emphasis supplied.) The Boumediene Court found that the Bush Administration scheme did not meet these requirements. An Obama Administration detention regime would have to and even more, it can exceed the bare minimum constitutional requirements. President Obama yesterday said:

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.

(Emphasis supplied.) If President Obama is true to his word, I believe a fair, constitutional detention regime can be implemented, one which conforms with our obligations under the Geneva Conventions. Of course, we must be vigilant and insure a fair process is implemented. But this is always true, no matter what the President says.

Greenwald rejects the POW comparison:

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "POW's" to be held without trials, that argument was deeply misleading. And it's no less misleading when made now by Obama supporters. That comparison is patently inappropriate for two reasons: (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual battle, on a real battlefield, wearing a uniform, while engaged in fighting. The potential for error and abuse in deciding who was a "combatant" was thus very minimal. By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc. Instead, many of them are picked up from their homes, at work, off the streets. In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

With all due respect to Glenn, it is HIS argument that resembles that of Bush supporters - the ones they made when arguing the Geneva Conventions do not apply to the detainees. It is simply wrong to argue that the Geneva Conventions does not apply to unconventional combatants and it is wrong to argue, in my view, that a fiar and sensible detention policy can not be devised for such unconventional combatants. In the end, Greenwald's real objection it seems to me is this:

In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

It is precisely this that is objectionable and which must be addressed and what President Obama promises to address. Of course, promises are easy. Keeping them is harder. But, I respectfully disagree with Glenn's take on this matter.

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"Preventive Detention" And Prisoners Of War | 71 comments (71 topical)

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If it's okay for the US (5.00 / 2) (#2)
by TeresaInSnow2 on Fri May 22, 2009 at 10:47:16 AM EST

to have indefinite "preventive detentions" under the Geneva Conventions, then it will be just as okay to do the same to our citizens, right?

John Walker Lindh (none / 0) (#4)
by Big Tent Democrat on Fri May 22, 2009 at 10:53:38 AM EST

was clearly a traditional Geneva combatant.

He could have been held as a prisoner of war. Probably should have been. Now, the question is how long was a reasonable time of detention for Lindh in light of the fact that the Taliban fell in 2001 BUT has now resurged.

The question is simply not that which you or Glenn pose imo.


The time question still bothers me (5.00 / 3) (#5)
by andgarden on Fri May 22, 2009 at 11:00:57 AM EST

Of course, you never know when any war might end, but this "war" is so nebulous that, in principle, it could go on forever.


That is precisely why (5.00 / 1) (#6)
by Big Tent Democrat on Fri May 22, 2009 at 11:05:25 AM EST

A different sort of regime is required. One that is more based on the status and attitude of the detainee as opposed to the "state of war."

Think of it this way - a "parole hearing" of sorts. A test of whether the detainees are truly significant risks of rejoining the "battlefield."

But not one dependent on whether the "War On Terror" is ongoing, hot or cold, etc.


Hamdi v. Rumsfeld (5.00 / 1) (#10)
by Steve M on Fri May 22, 2009 at 11:15:09 AM EST

Here's how the court addressed the indefinite detention argument:

Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that "the detention of enemy combatants during World War II was just as `indefinite' while that war was being fought." Id., at 16. We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.
Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan... The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

In other words, based upon the facts of Hamdi, the Court neatly sidestepped the issue based upon the fact of ongoing hostilities in Afghanistan. But that doesn't really give us any guidance as to the wider class of individuals (i.e., people who don't adhere specifically to the Taliban) or as to what we do once the war in Afghanistan is over.

I think it's a very difficult question, because while we could be confident that German POWs wouldn't return to fight against us once a peace treaty was signed, it is hard to envision what event could ever give us such confidence as to al-Qaeda terrorists. But more importantly, it seems like Hamdi made clear that existing Congressional authorities simply do not extend to indefinite detention. Does everyone accept that some sort of new law will have to be passed?


: We can no longer (none / 0) (#12)
by Big Tent Democrat on Fri May 22, 2009 at 11:17:25 AM EST

"neatly sidestep" the issue.
I do not believe Greenwald's approach here is actually addressing the issue. that is my point.

Thought crimes (5.00 / 1) (#71)
by Bornagaindem on Sat May 23, 2009 at 09:21:58 AM EST

You and Obama are condoning holding people for thought crimes -crimes they might commit. Not ever acceptable- it is the chance you take to every day to live in a free society. One day out of the blue someone might decide to kill you. Whether it is because they woke up and were mad at their mother after all her years of abuse or whether it is because he/she is a jihadist and they think that westerners are ruining their great Islamic society- it doesn't matter. Even if they talk about it and say they support bin Laden you can't imprison them -that is called freedom of speech. There is no difference between the crimes committed by a terrorist and those committed by a serial killer. You cannot put them away for crimes they haven't committed except on conspiracy charges and with evidence.

A terrorist organization must be fought by gathering intelligence and vigilence -those are your tools and they work wonders 99% of the time. That is life. You can't ask for 100% security because what you have to give up to get that is too precious. That is the discussion and you are missing it. Terrorism has existed forever and will continue to exist. We have always been at war with Eurasia!

You and Obama are trying to make new rules to go forward and that is what we civil libertarians are upset about. They are not necessary and they are not supported by our constitution even if you pack the courts with people who misguidedly think they can keep us safe by compromising freedom. There are only 250 or so people in Guantanamo - they can be dealt with on an individual basis recognizing that evidence was compromised by the Bush administration. It is not an impossible task and then Guantanamo will be gone.

If the war goes on forever combatants can't be POW's. You can't know that they have been reformed and if you don't have evidence that can convict them in a reasonable court of law you just have to let them go. Too bad if they do a bad thing -it happens all the time and we don't run and hide our heads in the ground and insist that we need to cmpromise our freedom because of what might happen.

Take away everyone's car if you want to prevent deaths. It would be much more effective and less of a danger to the constitution.


I like that idea (none / 0) (#9)
by andgarden on Fri May 22, 2009 at 11:10:19 AM EST

This is the discussion (5.00 / 1) (#11)
by Big Tent Democrat on Fri May 22, 2009 at 11:16:12 AM EST

that I think needs to take place.

I think arguing that there are no "combatants" in the terrorism fight is wrong factually and a loser politically.

It is a different sort of combat, but still combat imo.


Well, do we have experience with comparable (none / 0) (#13)
by andgarden on Fri May 22, 2009 at 11:22:09 AM EST

situations? How do you rehabilitate gang or cult members, if at all? How could you even prove that rehabilitation has taken place?

I agree that this is a very difficult problem, but I don't think there are any easy answers.


: And President Obama (5.00 / 1) (#15)
by Big Tent Democrat on Fri May 22, 2009 at 11:25:18 AM EST

has promised to have the discussion with all branches of government and, one hopes, in a transparent fashion.
Let's hold him to that.

terrorism will exist so long as their are (none / 0) (#32)
by BobTinKY on Fri May 22, 2009 at 12:28:23 PM EST

aggrieved (rightly or not) populations who lack military capability even remotely comparable to those they perceive as their oppresors.

Terrorism is a criminal matter, not a military matter.


Of course it is, and (none / 0) (#48)
by NYShooter on Fri May 22, 2009 at 02:12:38 PM EST

We have to dust off the old, shop worn, but appropriate, "root causes" debate, for real this time.

I just don't buy the "they hate us for our freedoms," argument, or they're carrying out the Koran's directives to conquer and dominate the world idea.

As long as we support, arm, and protect the brutal, inhumane dictatorships that sit on top of the oil fields, "terrorism," will be with us. If you, and your family are eating camel dung while looking up at the palaces, business ends of clubs & whips, and have no future worthy of a human being, Osama Bin Ladens will be with us.

I don't think it's any more complicated than that.


: It's not more complicated than that (none / 0) (#51)
by BobTinKY on Fri May 22, 2009 at 03:09:00 PM EST

but the War on Terror does not require Muslim fanatics, presumably any group will suffice to continue the war. In my lifetime I can recall just off the top of my head:
red brigades
Black September
IRA
various radical & violent US groups in the 60s
it just goes on and on. It won;t ever end and a war on terror should never have been started. Crime is crime. Fight it, punish it.
And by the way Cheney-like fear mongering does not faze me. Not with officials who have at least a shred of competence and access to the type of intelligence that had been circulating prior to 9/11. I don't know how anyone could have read the 9/11 report and not wonder how the Government, with all it knew, failed to prevent it.
Had Bush's anti-terror priorites been on par with Clinton's, or what Gore's would likely have been, 9/11 would have almost certainly been pre-empted. It took until Katrina for most to see how historically incompetent the Bush Administration was, but the 9/11 report had to me already made that abundantly clear.
But Bush and Dickhead kept us safe, if you grant them the bogey for 9/11 itself. I don't. No conspiracy, just incompetence on a scale that has rarely been seen in the Oval Office, but which had been on display for anyone who bothered to examine the idiot's life story.
I doubt even Palin would have the level of incompetence that Bush's sense of entitlement, privilege, utter lack of self accomplishment and addictive personality produced. So long as we have competent leadership from an administrative perspective, even if not from policy persepctive, I don't fear a mass scale event. It just takes too much coordination, coordination that almost invariably will not escape the notice of law enforcement, especially now. That is why I am ok if cases cannot be made against presumed terorists because Bush stupidly tortured them.
"hate us for our freedomes" Seriously, the analysis of a child. A slow one at that.

Untraditional POWs (5.00 / 1) (#3)
by ruffian on Fri May 22, 2009 at 10:52:14 AM EST

The key point to me has always been that there must be some sort of judicial review on people we hold in custody. The fact that the Bush administration disagreed with that was no less than unconstitutional tyranny. In a traditional battlefield POW status is obvious, as Glenn points out, and it is clear that we have to have an equivalent status for less obvious POW situations. I concur 100% with BTDs statement here:

I believe a fair, constitutional detention regime can be implemented, one which conforms with our obligation under the Geneva Conventions. Of course, we must be vigilant and insure a fair process is implemented. but this is always true, no matter what the President says.

Since the discussion this week has been focused around the Gitmo detainees, it has not been mentioned that we are probably capturing more people every day. It is high time, 8 years later, that we got a sustainable system in place.

What is a combatant? (5.00 / 2) (#7)
by Steve M on Fri May 22, 2009 at 11:06:12 AM EST

An armed person captured on a battlefield is obviously a combatant. What about a person captured in their apartment (maybe here, maybe halfway around the world) allegedly plotting to do us harm? What about someone who allegedly finances terrorist activity (which might mean someone who actively adheres to a jihadist ideology, or it might mean a clueless person who thinks they are funding an Islamic charity)? These are not rhetorical questions - I am genuinely interested to know how far you would apply the definition.

I am open to the idea that modern war is different and that more people are "combatants" than just armed individuals on the battlefield. But Glenn's point isn't just that "unconventional combatants" don't fit the dictionary definition - his point is that such individuals tend to display insufficient indicia of combatant status. But as you say, Glenn and the President don't seem to disagree very deeply on the punchline - there needs to be a REAL review of the evidence against these people, not just some secret and summary proceeding that heavily defers to the word of the Executive Branch.

A critical question (5.00 / 3) (#8)
by Big Tent Democrat on Fri May 22, 2009 at 11:07:33 AM EST

and one not easily answered in kneejerk fashion.


The suspects from the Bronx plot would be (none / 0) (#19)
by vicndabx on Fri May 22, 2009 at 11:42:42 AM EST

Even though they may have been egged on by the informant, they expressed an intent to want to harm their fellow citizens using the same rationale for violence we've heard time and time again from terrorists.


There ya go (none / 0) (#22)
by Steve M on Fri May 22, 2009 at 11:48:43 AM EST

but I think implicit in all this is an acknowledgment that we don't need to give non-citizens the exact same process as citizens (even though the Hamdi case, discussed in this post, did involve a citizen). Otherwise, it's awfully hard to distinguish some of these non-battlefield combatants, whatever you want to call them, from run-of-the-mill domestic criminals.


I've made threats to harm (none / 0) (#53)
by of1000Kings on Fri May 22, 2009 at 03:13:54 PM EST

dumbass drivers that are never in the lane they need to be in and then cross over at the last minute...

maybe I shouldn't be posting that though....
not like I live in China or something, though...right?


: your threats to harm are not the same thing as (none / 0) (#72)
by vicndabx on Sat May 23, 2009 at 09:35:06 AM EST

actually following thru with a threat - whether or not you are highly suggestible, your free will gives you the ability to say no.

Since we imprisoned so many... (5.00 / 3) (#14)
by Dadler on Fri May 22, 2009 at 11:25:16 AM EST

...who were merely sold into captivity, I think it is a bit naive to think that what Obama is proposing is really that different. If the manner in which you capture these folks has been so tainted for so long, and the simple fact we have invaded and murdered nations who did not invade us (Iraq is not AQ, nor is AQ the Taliban, AQ is not a country), leaves us in the position of being nothing more than moral wretches looking for a soothsaying solution.

When you start killing people en masse for no reasons other than misguided vengeance and deluded notions of your own righteousness, you can expect nothing good to come of it. That includes every aspect of it, from the fighting to the detention to the aftermath physically and psychologically for those involved.

In short, no, I do not believe WE are capable (sure it MAY be possible, but not with us) of doing anything but making the same stupid mistakes over and over, as we have proven adept at. Whatever this policy change is, it will still be the policy of a nation that has committed unforgivable acts of mass murder, sent our own men and women on a violent fool's errand, and therefore will be corrupt no matter what. It might make us feel a little better in the short run, but it will do nothing to erase the permanent stain on our moral being as a nation in the long run.

Whatever we do will be nothing but icing on a putrid, modly piece of maggot-infested cake.

But I'm in a bad mood today, maybe it'll all work out just perfectly.

Ahem.

A proper review of the detentions (none / 0) (#16)
by Big Tent Democrat on Fri May 22, 2009 at 11:26:18 AM EST

should bring those facts to light and lead, in those appropriate cases, to release of the detainee.


: I agree, but... (5.00 / 1) (#31)
by Dadler on Fri May 22, 2009 at 12:27:18 PM EST

...that assumes we have any real interest in a proper review. Or that one is even possible at this point, after our history of being totalitarian thugs with these detainees. Fear of these people has been far too well cultivated, and far too accepted by all sides. This is one thing, sadly, the Republicans can play for all its worth and "succeed". Ultimately, I think we'll merely end up building our own "terrorist" gulag here, calling it something else, giving a modicum of more "rights", and keep most of these folks locked up until they decompose. Which is better, I suppose, than the ironic absurdity of our running our gulag in CUBA, of all places.

Will U.S. now make drone attacks (none / 0) (#75)
by oculus on Mon Oct 04, 2010 at 02:05:54 PM EST

on Hamburg? Headline says terrorist threats to Europe are emanating from Hamburg.


What disturbs me, is something Glenn (5.00 / 4) (#17)
by Anne on Fri May 22, 2009 at 11:33:35 AM EST

asks in the post you linked and quoted (formatting was in the original):

(6) Is it "due process" when the Government can guarantee it always wins?
If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).
Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).
Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

Will Bunch reacts to the Obama speech and the proposal:

The problem, of course, is that while Obama is scoring a 98 on the rhetoric front, he gets a 50 on the policy -- and I stopped dead in my tracks when he started making the case for something called "preventive detention," not so different from what George Orwell called "the Thought Police."

[snip}

No matter how much Obama tries to blame this on the Cheney torture policies (which created that inadmissible evidence), two wrongs don't make a right. What he's proposing is against one of this country's core principles, which is habeas corpus. No matter how many guidelines that Obama and his administration try to impose, there is nothing in the Constitution that would permit the indefinite jailing of people "who cannot be prosecuted for past crimes" but who "nonetheless pose a threat to the security of the United States" -- nor should their be. Not even if we ever do develop the mind-reading powers of a "thought police."

The views od Michael Ratner, from the Center for Constitutional Rights, via HuffPo:

In an interview with the Huffington Post shortly after Obama concluded his remarks at the National Archives, Ratner expressed disappointment and even a tinge of anger at the approach the president had outlined on detainee policy, military tribunals, and even accountability.
He praised Obama for wanting to close Guantanamo Bay, but called his overall position on detaining and trying suspected terrorists "a road to perdition," primarily because of the use of military commissions. "Military commissions are used when you want an easy way to convict people," he said. "You write up new rules after the fact. That's what military commissions represent. His history was just flawed. They were not used very often. They are used on the battlefield or shortly thereafter in a real war. "
Even more troubling for Ratner, however, was the notion of preventive detention -- which he called "the real road to hell," and compared to something from the movie Minority Report. "[Obama] said some people are just too dangerous to let go and that we have to keep them," said Ratner. "Though we'd do it differently then Bush. We will set up rules. Well no matter how you repackage Guantanamo, with all kinds of rules on top of it -- that is what he is doing, he is re-wrapping a preventive detention scheme and giving it some more due process. In the end, it still comes down to holding people -- much like Minority Report or pre-crime stuff -- for being dangerous, and that is not something that I think is constitutional or this country should be engaged in."

Obama's belief that he - and his administration - can re-write and tweak and reinvent procedures and processes that have stood the test of time and judicial review, even during very dark times in our history, is worrisome, to say the least.

Joan Walsh asks,

Is Obama creating "an American Gulag?

Good question.

This is a terrible policy. Terrible.

Glenn's question is rather silly imo (5.00 / 1) (#18)
by Big Tent Democrat on Fri May 22, 2009 at 11:41:13 AM EST

Of course it can not be due process when the government is guaranteed to win. The question is not worth asking imo.

Will Bunch seems wrong to me in assuming that Obama is proposing eliminating habeas corpus. Indeed, Obama would seem to be advocating for the opposite - a structured habeas process for detention.

I have all the respect in the world for Michael Ratner, but I think he is wrong in his approach here. I think Ratner should be fighting for a strong framework to insure that mistaken detentions are not validated.

Joan Walsh's question is best answered this way - not if we do not let him do it.


Grea BTDt, now, like The Village, you're (1.00 / 1) (#35)
by FoxholeAtheist on Fri May 22, 2009 at 12:47:58 PM EST

characterizing Grenwald's position as that of a "silly", aka unserious, person. Or does it mean something less purposefully condescending and dismissive when you use the term?

Of course, your defense of Obama's "preventive detention" is also quite Villagesque. So, I guess it's altogether predictable that you would use the craven buzzwords of The Village to discredit Greenwald who is, decidedly, one of The Village's most ardent, fearless, and brilliant critics.


I would hope (5.00 / 2) (#36)
by Big Tent Democrat on Fri May 22, 2009 at 12:53:13 PM EST

that when I ask a silly question, glenn would not be shy about saying I asked a silly question.

I addressed Glenn's post with great respect and in detail.

I treated his post quite seriously. that question, not the subject of my post, is silly imo.


When you use the cheap shot term "silly" (1.00 / 1) (#39)
by FoxholeAtheist on Fri May 22, 2009 at 01:39:50 PM EST

to dismiss any of Greenwald's questions about Obama's "preventive detention" - it reeks of The Village. In much the same way Obama's "preventive detention" reeks of Bush. That's all I'm saying.


: Well (5.00 / 1) (#40)
by Big Tent Democrat on Fri May 22, 2009 at 01:43:40 PM EST

What can I say? that particular question is silly, imo. I will not refrain from using the word I believe is appropriate.

Class interests and the "war on terror" (5.00 / 1) (#25)
by Andreas on Fri May 22, 2009 at 11:56:54 AM EST

The WSWS writes today:

Obama's temporizing, his constant cowering, is conditioned by the class interests that he represents. Whatever his criticisms of the Bush administration's policies, Obama defends its basic aims. On domestic policy, he is continuing the massive handouts to the banks and Wall Street investors. On military policy, he is continuing the occupation of Iraq, while expanding the war in Afghanistan and Pakistan. His argument for legality is undermined by the fact that his administration has restarted military commissions, refused to publish torture photos, and in general maintained the anti-democratic measures of his predecessor.
Whatever verbal warnings Obama may make about the erosion of democracy in the United States, the actions of his administration facilitate and accelerate its breakdown. It is impossible to combine imperialist war with democracy. The latter cannot survive without opposing the former.
Obama is incapable of exposing the real social and political content of Cheney's attack, because to do so would require the exposure of the political aims and reactionary class interests that motivate the "war on terror." Moreover, it would require an appeal for the popular mobilization of the American population in defense of democratic rights. But at a time when the administration is pursuing domestic policies that protect the interests of the financial elite, the Obama administration has no desire to arouse popular discontent.
The defense of democratic rights cannot be safeguarded to any faction of the ruling class. The institutions of American democracy have already reached a very advanced level of decay.

The Obama-Cheney "debate" and the threat of dictatorship in America
Joe Kishore, 22 May 2009

: That's the PRIME reason Obama opposes criminal (none / 0) (#38)
by FoxholeAtheist on Fri May 22, 2009 at 01:08:13 PM EST

investigations of the Bush/Cheney cabal. As cited above by Andreas from the WSWS:

At a time when the administration is pursuing domestic policies that protect the interests of the financial elite, the Obama administration has no desire to arouse popular discontent.
In other words, you wouldn't want to wake the sleeping giants on Main Street while you're still picking their pockets to pay off the insatiable monsters on Wall Street.

If terrorism is something you wage war upon (5.00 / 2) (#28)
by BobTinKY on Fri May 22, 2009 at 12:19:38 PM EST

then I'd agree with your post. I think it is a crime and more properly to be addressed by law enforcement officials and not the military. Certainly, to the extent a nation-state is harboring terrorists, like the Taliban, then I think it appropriate to hold that nation accountable and, if necessary, declare war on it, not the particular crime that those the nation in question is harboring may engage in.

Given my belief that terrorism is criminal activity then it follows that those who train with others to engage in terrorism are, at minimum, guilty of participating in a criminal conspiracy. Apprehend and convict them, enact laws against this particular conspiracy that lengthens the sentence.

Bush, and now Obama's, view that there exists a war on terror rather than a war against the, for example, Afghan government, has directly led us to this Constitutional crisis. Not to mention the problem of identifying when the war ends (never), or the complications created by Bush's Iraq fiasco and torture regime.

Terrorist acts are, among other possible crimes, attempted murder and all too often actual premeditated murder. When we start viewing criminal activity for what it is and not a crusade of good vs. evil then we can rationally address the issue of the Guantuanomo prisoners. Unfortunately, with Obama having apparently accepted the moron Bush's premise, the die may be cast another eight years of absurd and unnecessary Constitutional crises.

As Obama (5.00 / 1) (#57)
by TeresaInSnow2 on Fri May 22, 2009 at 05:17:47 PM EST

essentially repackages Bush's policies into pretty boxes with butterflies and rainbows and the Democrats furiously nod in approval, both Bush and Cheney's approval ratings go up.

Their approval rating has certainly gone up in my own mind. For me, I have come to the conclusion that if Democrats are essentially adopting Bush policies (albeit with rainbows), then maybe Bush/Cheney's policies weren't all that bad and the outrage was manufactured? Given that impeachment was off the table a long time ago, the complicity of Democrats in the past and the adoption now of Republican policies (albeit with a pretty bow and a nice, creative, interpretation of the Geneva Conventions), tell me my assumption here is correct.

I long for the days when Democrats considered terrorism a law and order matter. Too bad Kerry didn't win in 2004. We may have not gone so far down this unconstitutional road, and certainly not without more kicking and screaming.

But I have to remember that many "liberals" were in agreement that we shouldn't prosecute the Bush Administration for torture, then changed their mind. Maybe minds will be changed in a few days about this too. For now, radical extremist thought policing is "centrist policy".

Never thought I'd see the day.

there is no relation between your comment (none / 0) (#58)
by Big Tent Democrat on Fri May 22, 2009 at 05:32:10 PM EST

and my post.


: Really? How so? (none / 0) (#65)
by ghost2 on Fri May 22, 2009 at 09:35:40 PM EST

Her point is ABSOLUTELY relevant to your post. Here's the Orwellian language "Preventive Detention" and you are covering up for it. I guess the 8 years of protesting against Bush policies were just for show, not principles. Silly us.
You know, you are hiding behind your past critism of Obama. Yet, when it mattered, that critism was not there to be seen. You wrote that you are 'disappointed' in Bill Clinton's language regarding Jesse Jackson having won South Carolina, and helped perpetuate the phoney 'race card' meme. You later changed your tune (when it didn't matter). You were disappointed in Hillary's comments regarding RFK campaigning in June. Then you apologized and changed your tune (when it didn't matter).
Most ridiculous of all, you seem to reserve the right to laugh at the media, yet say they were the reason you were voting for Obama. Really, quite an act! To condemn corporate media and give them enormous power at the same time!
People who have principles actually ACT according to those principles and make tough decisions. As Bob Somerby says, this is NOT a sports match.
And Yes, Obama is implementing all the Bush policies. The same policies that DEMOCRATS WANTED BUSH IMPEACHED FOR!!! That was Teresa's point.
Or is it the fact that he is either the Messiah, Dear Leader, The One, The One With a 'D' After His Name, whatever, and therefore we should all trust him?? What nonsense.

Being *at war* is necessary to retain the BushCo (5.00 / 1) (#59)
by jawbone on Fri May 22, 2009 at 06:34:33 PM EST

accrued executive powers for this executive and future executives. And to establish new ones.

It is not necessarily even the same "war" or activity called a "war". It can be war against Afghanistan, then war against Iraq, then war against Afghanistan rebels, then war against Pakistani regions, then....

Actually control or kill off the enemies?

Well, always, there's that handy "War on Terror," so amorphous as to be applicable to a world-wide range of situations. The gift that keeps on giving.

If only Clinton had been "at war" longer during his administration, perhaps he wouldn't have been impeached....

It's certainly the Get-Out-of-Constitutional-Constraints card for presidents. For those who want to be out from under the rule of law or Constittionality.

What's that old saw about power and corruption? Absolute power and absolute corruption?

I thought it was no longer called (none / 0) (#61)
by nycstray on Fri May 22, 2009 at 07:23:58 PM EST

"War on Terror"? Didn't they "change" that?


: Yeah, (none / 0) (#66)
by ghost2 on Fri May 22, 2009 at 09:42:29 PM EST

What was it?
"Overseas Contingency Operation".
Now if I only could come up with a catchy name for a person on the opposing side of the "Overseas Contingency Operation" ...

Its interesting how (5.00 / 1) (#60)
by coast on Fri May 22, 2009 at 07:16:12 PM EST

when campaigning and upon entering the office, this was such a black and white issue. Gitmo should be closed and trials should be held. Now suprisingly it has become a complex one. Amazing how that happens.

You say that for these detainees who have committed no crime, but are deemed "dangerous" by the government will be afforded some sort of judicial/congressional oversight. Given H. Reids comments this week, which congressman do suppose is going to challenge the government's contention that a detainee is dangerous?

The fact is that this issue is fairly simple. The law of war applies to those who are captured on the battlefield, whether they are uniformed soldiers or combatants. They are covered by the Geneva Convention and may be held until the war has ended.

Those capture off the battlefield are covered by the Constitution. The Fifth and Sixth Amendments and habeous corpus apply. The government must put them on trial and prove their guilt. Anything to the contrary opens the door to indefinite detentions, which are against the law.

You had it right before. Obama needs to change his position, not you yours.

: The only difference (none / 0) (#67)
by ghost2 on Fri May 22, 2009 at 09:46:03 PM EST

is the person is now wearing home team's jersey.
How utterly despicable. And to think that I came to sites like this for years, and thought that the passion for democracy and justice and constitution was real.
It's sad to find out how naive one has been.

the 48 prisoners ready for release (1.00 / 1) (#21)
by diogenes on Fri May 22, 2009 at 11:48:18 AM EST

Obama says that there are 48 prisoners ready for release today, except that no country wants them. If it is really true that these are fine fellows who are ready for release, then he should give them all political asylum and let them move to the US. Otherwise he's a cynical hypocrite.

Strange argument (none / 0) (#24)
by Steve M on Fri May 22, 2009 at 11:50:04 AM EST

Not one of your more coherent ones IMO.


Or...take them back where you (none / 0) (#49)
by oldpro on Fri May 22, 2009 at 02:43:32 PM EST

found them?


: Here's your parachute. Now jump. (none / 0) (#76)
by oculus on Mon Oct 04, 2010 at 02:09:32 PM EST

Ok, so you went a long way in answering (none / 0) (#1)
by andgarden on Fri May 22, 2009 at 10:43:09 AM EST

my question from yesterday. Whether I'm comfortable with this at all will depend entirely on how reviewable the classification is. It can't just be that the president signs a paper saying that you're an enemy combatant, and some magistrate judge rubber stamps it (as with al-Marri).

Devil in the details but this is a good idea (none / 0) (#23)
by vicndabx on Fri May 22, 2009 at 11:49:53 AM EST

Yes sir. We need to get with the program and agree to something to deal w/these crackpots if we don't want to be cast aside as unrealistic idealists who watch too much Star Trek.

What to do re a person (none / 0) (#26)
by oculus on Fri May 22, 2009 at 11:57:08 AM EST

Detained due to some affiliation w/the Taliban when the governments of both Pakistan and Afghanistan are working for agreement w/ the Taliban?

First (none / 0) (#29)
by BobTinKY on Fri May 22, 2009 at 12:24:13 PM EST

we had, after 9/11 and their refusal to police criminals within their borders, every right to properly declare war against the Afghan government (the Taliban). Captured Taliban officials are POWs, just as were N Korean and N Vietnamese/Viet Cong in those undelcared wars, both of which ended by treaty (not to get into the weeds of the Korean cease fire issue).

AL Quaeda (?) personnel, on the other hand, are criminals and should be tried in an Article III court for their crimes.


I think this is (none / 0) (#30)
by Big Tent Democrat on Fri May 22, 2009 at 12:27:11 PM EST

a fairly conventional situation where the POW classification is uncontroversial. what am I missing?


It may be that the terrorist conspirator , (none / 0) (#33)
by BobTinKY on Fri May 22, 2009 at 12:33:00 PM EST

in this example an Al Quaida member, is also and Afghan or other person who is fighting with the Taliban. Thus that person is both a POW and, potentially, a criminal. Surely we had German POWs, or farther back Union or Confederate POWS, who were also guilty and charged with criminal activity.

Yes they can be detained pursuant to Geneva conventions as POW, they can also be tried and if convicted sentenced pursuant to criminal law. Terrorists are criminals.


: Sure (none / 0) (#34)
by Big Tent Democrat on Fri May 22, 2009 at 12:37:11 PM EST

Seems fairly straightforward to me.

In my hypothetical the detainee's (none / 0) (#54)
by oculus on Fri May 22, 2009 at 04:07:53 PM EST

Affiliation was solely w the Taliban w/ no evidence of affiliation w/al Quaida.

Thoughtful post BTD. Plenty to think about. Thanks.


: The Taliban affiliation (none / 0) (#55)
by Big Tent Democrat on Fri May 22, 2009 at 04:17:17 PM EST

is what makes it fairly conventional imo.

As Obama and BTD have both noted, (none / 0) (#27)
by MyLeftMind on Fri May 22, 2009 at 12:17:39 PM EST

this is complex problem requiring carefully thought-out solutions, but doing nothing shouldn't be on the table. So what would YOU do with people that military personnel have captured who have, for instance, attended an al-Qaeda training camp? Let `em go because they haven't yet committed an act of terrorism?

BTW, thank you for this comprehensive analysis BTD.

If you;ve attended an AQ camp and profess (5.00 / 1) (#43)
by BobTinKY on Fri May 22, 2009 at 01:46:53 PM EST

affiliation with AQ and other groups who seek to injure innocent people, then why aren't you guilty of at least participation in a criminal conspiracy? You've taken a step (AQ camp attendance) and you know what the objective of the conspiracy is and seek to further it.

And if the laws are loose on this activity, tighten them up! Impose more severe sentencing for terrorist conspirators & any terrorist acts.

But try the perps in an Article III court and prove guilt beyond a reaosnable doubt.

If the AQ camp attendee is also a battelfiled captured opponent in a real declared/undelcared war against an identifiabel enemy (Afghan government), they are alo POWs who can be held as such pursuant to Geneva Conventions until such time as a) the war (the one against the Taliban, not some nebulous War on terror) is ended via treaty orsurrender, or 2) convicted and sentenced by a competent criminal court.

This is "difficult" only if you subscribe to Bush's idea of a War on Terror. Why do that? The man was/is a moron.


I think what makes me uncomfortable (none / 0) (#37)
by Anne on Fri May 22, 2009 at 12:59:53 PM EST

about the concept of preventive detention that is based on what someone may have done that looks bad, or who someone associated with, or what they wrote, is that it seems to put us on the brink of ushering in a new McCarthy era.


: 'wants to do harm to America' (5.00 / 2) (#42)
by ruffian on Fri May 22, 2009 at 01:46:43 PM EST

I don't like locking anyone up based on a description like that.

: Very slippery slope (none / 0) (#46)
by nycstray on Fri May 22, 2009 at 01:56:48 PM EST

The term terrorism goes beyond the "those wanting to harm America/Americans" also.
A lil' food for thought on who you associate with etc. There are more than a few out there that don't see a dimes bit of difference between animal welfare groups/people and the extreme animal rights groups/people. (trust me on this one, lol!~) Same on the environmental front.

You make a lot of good points (none / 0) (#41)
by Maryb2004 on Fri May 22, 2009 at 01:44:14 PM EST

Where I disagree with you and tend to agree with Greenwald is in defining what kind of "war" we're in.

We're fighting a war in Afghanistan and Iraq. The rest of the "War on Terror" I don't believe is a true war and I don't believe there can be true enemy combatants in that phony war. Terrr is a tactic and terrorist acts are simply criminal acts.

The question of course is where the lines between the real wars and the other "war" is drawn to divide the true enemy combatants from the people who are simply criminals. For all I know the "problem" cases at Guantanamo clearly fall into the enemy combatant category even under my tighter definition.

But your analysis based on the status of enemy combatant is very good.

I would also posit that one can be both (none / 0) (#44)
by BobTinKY on Fri May 22, 2009 at 01:52:53 PM EST

a terrorist criminal and a POW capured on the battlefield. This should not change the analysis, criminals are criminals and deserve criminal justice no matter what else they be, e.g., a POW.

Those that are purely POWs get treated like POWs, purusant ot geneva Convention for the duraiotn of the conflict. Those POWs who happen to be suspected of criminal acts also get tried for those crimes and, if convicted, sentenced separaet and apart from POW internment (to be returned to POW internment upon expiraiotn of their sentence if the conflict is not over), POWs get interred as they always have.

But it is important to recognize, as you have, that the war or conlfict is with an identified nation-state, not a war upon a tactic for violence. It can and will end with a treaty or conditinal/unconditional surrender. Once ended, POWs go free except those that may have been convicted of terrorist crimes. Those POWS go to or remain in jail serving whatever sentence has been imposed.


Thank you (none / 0) (#45)
by Big Tent Democrat on Fri May 22, 2009 at 01:54:32 PM EST

I guess my principal disagreement with Glenn is that in a properly constructed legal regime for this situation, we can place a greater onus on the government to prove the necessity of detention.

Presumably, their is SOME evidence beyond coerced testimony that the government can offer that can allow for a fair "determination of status" hearing. If there is not, then frankly, the government can not make its case and mist release those detainees - even if that detainee is KSH himself.

The issue is the legitimacy of that process it seems to me, not the idea of such a process itself.


: I agree with that. (none / 0) (#47)
by Maryb2004 on Fri May 22, 2009 at 02:00:20 PM EST

I'm encouraged that our Prez is trying (none / 0) (#56)
by MyLeftMind on Fri May 22, 2009 at 04:28:51 PM EST

to resolve the mess Bush left us by creating a new framework based on constitutional protections. The new system will occasionally fail, just like our current justice system fails when it imprisons innocent people or releases dangerous criminals. But we have good people working to correct those failings, and we'll have good people doing the same with this new category of combatants. At this point, there will be some detainees who cannot be properly tried. Releasing them would be political suicide for the Democratic Party. I'm willing to live with keeping them imprisoned if from here forward we do a better job.

The shameful process Cheney & Bush instituted is actually an essential factor in the GOP's downfall last year. By distributing the decision making and utilizing judicial and congressional oversight, Obama not only cleans up the process, but avoids the backlash of being individually responsible for a place like Gitmo. A bipartisan program from Congress will help alleviate the backlash toward Dems.

Why I don't find Obama's argument defensible (none / 0) (#62)
by Nonpartisan on Fri May 22, 2009 at 07:57:16 PM EST

is that it has not been the policy of the United States government ever before, to my knowledge, to try large numbers of prisoners of war by military commissions and/or to hold them outside the United States.

For instance, before 9/11 the only American prisoner of war was Manuel Noriega. Noriega was brought to the US and convicted of racketeering charges in a U.S. federal civilian court. That is, in my understanding, the standard way to treat prisoners of war.

Of course, in certain theaters of battle prisoners of war were tried by ad-hoc military commissions because they could not be effectively transported from the battle site. And some were shot on sight before becoming prisoners of war (though such behavior has always been illegal). But neither of those considerations is relevant here -- there is no problem with transporting the detainees, and this cannot be considered the heat of the moment.

The rules for heads of state have proven to be different. The Nuremberg Trials and the Tokyo Trials (the latter conducted by a military commission) were devised to handle heads of state. But again, in the one instance in which the U.S. held a head of state -- Saddam Hussein -- we turned him over to a civilian court in his own country. So again the precedent is not relevant.

My point is that these are plain old ordinary prisoners of war. And in the U.S. it is standard practice to try plain old ordinary prisoners of war in civilian courts. Between that precedent and Obama's unambiguous campaign promises, the President has an obligation to try all of the detainees in civilian courts and to hold them in civilian prisons. You may be correct that he can meet the Geneva Convention requirements by doing otherwise, but why should we settle for that minimal standard? The point of this exercise is to reaffirm our status as a shining beacon of justice, not simply to "fix" the broken Bush process of military commissions and extralegal prisons.

Caveat (none / 0) (#63)
by Nonpartisan on Fri May 22, 2009 at 08:02:38 PM EST

The U.S. of course did use extralegal prisons to hold Confederate leaders after the Civil War (see Andersonville). But the last of these prisoners (Jefferson Davis) was freed after two years.


: the southern terrorists weren't released (5.00 / 1) (#69)
by of1000Kings on Fri May 22, 2009 at 10:25:32 PM EST

into our backyards were they?
how could that possibly be allowed?
we don't allow terrorists anywhere in America...

Indefinite arrest without trial is okay with you? (none / 0) (#70)
by Mitch Guthman on Fri May 22, 2009 at 11:47:51 PM EST

BTD,

I find myself in strong agreement with Glenn Greenwald and Hizoy on this one. The President claims that he can imprison any person indefinitely for the rest of his or her life without a trial. Almost by definition, a government with such powers of summary justice is a dictatorial one. This is potentially the most significant change in our political structure since the nation's founding. The risk to America's system of constitutional government has never been greater. Greenwald is right when he says that it represent our acceptance of a permanent state of war and of the tacit suspension of the Constitution which began under George W. Bush. And he's right when he says, "arguments and rhetoric that were once confined to Fox News/Bush-following precincts will now become mainstream Democratic argumentation in service of defending what Obama is doing. That's the most harmful part of this -- it trains the other half of the citizenry to now become fervent admirers and defenders of some rather extreme presidential `war powers.'" This is very possibly a defining moment in our history.

By accepting for himself these powers of summary justice, President Obama has gravely imperiled our future as a free people. Make no mistake, from this point forward, there is no longer a Constitutional right not to be arrested and imprisoned at the whim of the president. Any of us can now legally be "disappeared". Family members of political opponents can likewise be "disappeared" as a way of keeping those who might speak out in line. This applies not only to nameless foreign "terrorists" but also equally to native-born Americans.

For a man supposedly learned in Constitutional law and theory, he and his supporters are surprisingly cavalier in overturning the limitations on executive power that the Constitution interposes as protection against the ordinary depravity of human nature. Now, we are totally dependent upon the good nature of our elected ruler. We can only hope that he is not a corrupt or evil man, or at best expedient as Obama appears to be. But if a future president proves to be corrupt and power-hungry, then we are finished because we've tossed the Constitution in the trash.

For those supporters who are prepared to rationalize and justify this outrageous assertion of the power of permanent arrest, ask yourselves this question: If John McCain had won the election and now gave this speech in which he, inter alia, claimed to have the power of permanent arrest, would you be writing the same posts, making the same defenses?

BTD, I would remind you that there is a vast difference between the requirements regarding the conditions under which people may be held captive and the Constitutional safeguards of political and personal freedom supposedly guaranteed for the American people. Satisfying the Geneva's barebones limitations does not automatically satisfy the constitutional requirements of due process. Indefinite arrest without trial can never be Constitutional regardless of the conditions of confinement.

A comfortable prison is a prison nevertheless. Don't take my word for it. You could perhaps ask aung san su kyi, except that she is being held under permanent house arrest (now with the benefit of an Obama-like show trial).

But enough of my thoughts. What interests me right now are the thoughts of one of this country's preeminent constitutional scholars and notable Obama supporter, Lawrence H. Tribe. So, I would like to once again take the opportunity to ask: I wonder how Prof. Tribe is feeling tonight?

: Tribe is probably advising (none / 0) (#73)
by oculus on Sat May 23, 2009 at 10:03:30 AM EST

The President.

Please remember that (none / 0) (#74)
by Jeralyn on Sat May 23, 2009 at 11:24:56 AM EST

profanity is not allowed here. Thanks. I had to delete a comment because of it. You can use an asterisk within the word in place of a letter if you must use that particular word.