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You are here: Home / Politics / War on Terror / War on Terror aka GSAVE® / Preventive Detention

Preventive Detention

by John Cole|  May 21, 20095:26 pm| 128 Comments

This post is in: War on Terror aka GSAVE®

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What on earth does this mean:

President Obama told human rights advocates at the White House on Wednesday that he was mulling the need for a “preventive detention” system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried, two participants in the private session said.

The discussion, in a 90-minute meeting in the Cabinet Room that included Attorney General Eric H. Holder Jr. and other top administration officials, came on the eve of a much-anticipated speech Mr. Obama is to give Thursday on a a number of thorny national security matters, including his promise to close the detention center at the naval base in Guantánamo Bay, Cuba.

Can anyone explain what exactly preventive detention means other than holding people indefinitely without evidence or charges? Reading through the speech he gave this morning, this is the relevant portion:

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here — this is the toughest single issue that we will face. We’re going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. 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.

This is the conundrum Tim F. has talked about before, and I honestly have no idea what to do with them, as there really appears to be no good option. Having said that, if your ears don’t perk up when you hear Orwellian nonsense like “preventive detention,” you just haven’t been paying attention the last eight years. All the rest of Obama’s speech seems to me to be reasonable, rational, and legal (at least to me). The decision here is really the whole ball of wax.

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Reader Interactions

128Comments

  1. 1.

    Brachiator

    May 21, 2009 at 5:28 pm

    Can anyone explain what exactly preventive detention means other than holding people indefinitely without evidence or charges?

    Pre-Crime.

    Time to watch Minority Report again.

  2. 2.

    gex

    May 21, 2009 at 5:29 pm

    I had no idea when I voted for him, that Obama would push for thought-crimes legislation.

  3. 3.

    Lee from NC

    May 21, 2009 at 5:30 pm

    Not good, not good at all. I hope he is better than this.

  4. 4.

    schrodinger's cat

    May 21, 2009 at 5:31 pm

    Welcome to the Empire.

  5. 5.

    JL

    May 21, 2009 at 5:31 pm

    Actually, I think that a guy who has been waterboarded 83 times and endured other torture will not be able to put up a defense. He’s damaged.

  6. 6.

    Mr Furious

    May 21, 2009 at 5:34 pm

    I don’t envy Obama’s task at all. This is an almost impossible mess to clean up. While the term “preventive detention” sounds Orwellian, key phrases like this one:

    “They can’t be based simply on what I or the executive branch decide alone. “

    …are a big departure from the previous Administration. I suspect there’ll be lots of conspiracy-type convictions based on declared threats rather than past evidence.

    The worst part of this it that many of these detainees that pose “a threat” probably didn’t initially, and only pose one now in response to their horrendous treatment.

    Heckuva job, Bushie!

  7. 7.

    InflatableCommenter

    May 21, 2009 at 5:38 pm

    I know what to do with them. Make them have sex with Michele Bachman.

    That accomplishes two things. It tortures them, and fucks Michele Bachman.

    ( bows )

    Thank you. Thank you.

  8. 8.

    The Other Steve

    May 21, 2009 at 5:39 pm

    How about we treat Al Qaeda as a country and we keep them as POWs until AQ surrenders?

  9. 9.

    Montysano

    May 21, 2009 at 5:39 pm

    there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted

    Translation: there are people who cannot be prosecuted because it would open a giant, stinky can of worms. Obama doesn’t want his first (only?) term to be consumed by “looking back”. He’s in a terrible position.

  10. 10.

    Joshua Norton

    May 21, 2009 at 5:41 pm

    “For they have sown the wind, and they shall reap the whirlwind”

    What ever these clowns do now will be done to our soldiers ten-fold as retribution and revenge. I hope they’re ready to deal with that. Where will the fingers point then?

  11. 11.

    Shawn in ShowMe

    May 21, 2009 at 5:42 pm

    And once again the Times buries the key point of their anonymously sourced scoop way down the page:

    “The other participant said Mr. Obama did not seem to be thinking about preventive detention for terrorism suspects now held at Guantánamo Bay, but rather for those captured in the future, in settings other than a legitimate battlefield like Afghanistan

    Shorter Times: “Let’s pretend we’re talking about Guantanamo when we’re really not”

  12. 12.

    Rainy

    May 21, 2009 at 5:42 pm

    He was talking about releasing people into the rehabilitation facilities that Saudi Arabia and other countries have established. If he doesn’t have the evidence to prosecute these people then he should just release them there. Holding them until the end of time is completely against the constitution and just doesn’t make sense.

  13. 13.

    Quaker in a Basement

    May 21, 2009 at 5:43 pm

    Well, what’s the alternative?

    We got a few folks down in Guantanamo who are genuinely dangerous. The collection and documentation of evidence is entirely corrupted. There’s no way to try them in an American court of law.

    You gonna just let ’em go? If your answer is no, then go back and read Mr. Obama’s speech again. If you can show where he’s wrong, hats off to you.

  14. 14.

    namekarB

    May 21, 2009 at 5:43 pm

    I would think that after the manner in which dome detainees have been treated there would be no doubt they would wage war against us. If the detainees did not hate America before Gitmo, they sure as hell do now.

  15. 15.

    Ash

    May 21, 2009 at 5:43 pm

    Really nothing he does in this situation will satisfy a majority of people. NOTHING.

  16. 16.

    El Cid

    May 21, 2009 at 5:44 pm

    Of course it may be weird one day when some other nation decides to detain a U.S. citizen or official or military member on the grounds that they don’t really have enough good information to try them in a court of law, but they don’t feel secure releasing him or her either.

  17. 17.

    Punchy

    May 21, 2009 at 5:44 pm

    A “legal basis” for incarcerating people without a trial? Is this a sick fucking joke? How can any inprisonment sans trial be legal by any possible definition anywhere?

  18. 18.

    stickler

    May 21, 2009 at 5:45 pm

    Simple question:

    Can anyone explain what exactly preventive detention means other than holding people indefinitely without evidence or charges?

    Preventive detention means holding (imagine, “hugging,” only with bars and handcuffs, instead of arms) people for a little while, just until things clear up a little. For their own protection, really, as well as that of society at large. The evidence will turn up eventually, as will the charges.

    In the original German, it was called _Schutzhaft_. Worked pretty well, too. Ask Ernst Thälmann (KPD): arrested in 1933, and held in solitary confinement for eleven years quite protectively until shot by the Gestapo on direct orders from Berlin killed by Allied bombs in an air raid.

    Preventive detention is a great idea! It’s a sign of a healthy democracy.

  19. 19.

    Daulnay

    May 21, 2009 at 5:45 pm

    The only thing to do with people who consider themselves at war with us is to put them in a P.O.W. camp until the war is over. That is the alternative to trials and courts. Treat them as enemy soldiers, with full Geneva protections, and keep them locked up until the ‘war’ is over.

  20. 20.

    Martin

    May 21, 2009 at 5:46 pm

    Can anyone explain what exactly preventive detention means other than holding people indefinitely without evidence or charges?

    That’s basically what it means. War combatants from an endless war.

    I don’t think there is any intention of seeking this for people we haven’t yet met, only for people that are in Gitmo, etc. whose cases have been so fucked up by Bush that they can’t be tried. But I think it’s a setup to get questions asked about why they can’t be tried in court. Obama’s position today with the public is much stronger on this issue than it was before Congress turned down the funding, and he couldn’t have given that speech today without the minor defeat the other day.

    But the simple answer to the problem is to simply put them back where we found them. Honestly, can any of these people really be that much of a threat to the US if we just stuff them back in the cave in Afghanistan that we found them in?

  21. 21.

    Napoleon

    May 21, 2009 at 5:46 pm

    My impression is that the preventative detention applies to people they already have and my gut feeling is that these are people that the Bush administration so poisoned the evidence they have against them, because of torture, that no real court is ever going to let the evidence in, and they do not otherwise have clean evidence to convict them. But it is real clear that these people are in fact guilty or complicit at a high level. These are not some truck driver, but people that are the brains. So Obama is screwed either way. If he tries them in an honest court they get acquitted, if it they are acquitted then he is stuck either releasing people everyone knows will be a real danger the day you let them go, or he just then ignores the court decision.

    The other thing he could do is simple never put them up for trial, which is what he has decided to do.

    I know a lot of people will not like that decision, but my guess is that these are people that if he ever lets them go there is a real danger to the US and the reality is he could then kiss any second term goodbye.

  22. 22.

    TenguPhule

    May 21, 2009 at 5:49 pm

    Of course it may be weird one day when some other nation decides to detain a U.S. citizen or official or military member on the grounds that they don’t really have enough good information to try them in a court of law, but they don’t feel secure releasing him or her either.

    We welcome French and Spanish snatch&grabs of Republican officials. Just don’t forget Alito, Thomas and Roberts when you hustle them all out of the country.

  23. 23.

    El Cid

    May 21, 2009 at 5:49 pm

    Obama could release them onto a nearby planet which while absent of intelligent life permits them to farm and develop a hardscrabble existence, so that their genetic superpowers and extended life are less of a threat to all civilization.

  24. 24.

    Ash

    May 21, 2009 at 5:49 pm

    Really though, WHAT are the alternatives for the really dangerous ones for which all evidence is basically moot? I personally haven’t heard the other ideas yet, and I’ve been wondering since the kvetching began. If there was SOMETHING else possible, what is it?

  25. 25.

    Echoes with Bunnies or Men

    May 21, 2009 at 5:50 pm

    When I read that phrase all I could hear was a PBS-style sing along…

    Prevention Detention! La la la laaaa

    Just like Conjunction Function!

  26. 26.

    TenguPhule

    May 21, 2009 at 5:51 pm

    Obama could release them onto a nearby planet which while absent of intelligent life permits them to farm and develop a hardscrabble existence, so that their genetic superpowers and extended life are less of a threat to all civilization.

    KAAAAAHNNNNN!!!

  27. 27.

    Martin

    May 21, 2009 at 5:54 pm

    If there was SOMETHING else possible, what is it?

    Since Bush and Cheney created this mess, why not replace their secret service detail with them. Gives them a job, something to be proud of, and Bush and Cheney have plenty of time to help rehabilitate these misguided individuals.

  28. 28.

    Comrade Kevin

    May 21, 2009 at 5:56 pm

    What will the code name be for this? Operation Demetrius?

  29. 29.

    Shawn in ShowMe

    May 21, 2009 at 5:56 pm

    My impression is that the preventative detention applies to people they already have and my gut feeling is that these are people that the Bush administration so poisoned the evidence they have against them, because of torture, that no real court is ever going to let the evidence in,

    It says right in the article that the idea of “preventative detention” isn’t being used in the context of the Gitmo prisoners . But it looks like we’re headed for an 100 post thread based on the premise that it is.

  30. 30.

    asiangrrlMN

    May 21, 2009 at 5:56 pm

    @Quaker in a Basement: I would actually disagree with you in assuming that they are inherently dangerous. I am not confident in the reports that they are all terrorists. I am not saying they aren’t–I am just not willing to say they are. We have been lied to for so fucking long, I tend to doubt everything that’s being said about the prisoners of Gitmo.

    There is no way they should be held indefinitely without a trial without possibility of release or conviction because we fucked things up this badly. If Obama has evidence, real, hard evidence that these men are a danger to us–and were before we imprisoned them–then he should release such evidence.

    Otherwise, we let them go or acknowledge that we fucked up and house them properly (yes, in a jail setting). We let their families see them. We treat them like human beings. It’s incomprehensible to me that they should have to suffer even more (like the Uighurs) because we won’t own up to what we have done.

    Everything is politicized and used as a bargaining chip. These are real people. What if one or more of them is innocent?

    Um. I ran out of steam. I’m done for now.

  31. 31.

    SGEW

    May 21, 2009 at 5:56 pm

    Looking for proof. I have yet to see pudding.

  32. 32.

    asiangrrlMN

    May 21, 2009 at 5:59 pm

    @Shawn in ShowMe: Ok. I still stand by my points, but if that’s true, then Obama is just setting up this system for future prisoners-who-cannot-be-tried? I like that even less.

  33. 33.

    harlana pepper

    May 21, 2009 at 6:00 pm

    All the rest of Obama’s speech seems to me to be reasonable, rational, and legal (at least to me).

    And sane as opposed to the insane ramblings of that evil old man whose name I shall not speak

    it’s all blah, blah, blah (I want to sound tough on terrorists bullshit), but if you’ve learned your lesson as a good little progressive, (which if you haven’t by now, where have you been?) you expect little, and then you don’t get so disappointed; you have to consider the alternative, which is Cheney

  34. 34.

    bedtimeforbonzo

    May 21, 2009 at 6:02 pm

    Quaker in a Basement: “Well, what’s the alternative?”

    See No. 8 who comes up with a novel idea, the first time I’ve heard it, and it may not even be possible.

    But at least The Other Steve is thinking of alternatives — the Great Obama is just reliving Dick Cheney’s greatest hits.

  35. 35.

    steve

    May 21, 2009 at 6:02 pm

    Oh come on everybody, you all must be listening to the right wing fear messages.

    Obama said it himself with his speech today. They will be treated as POWs, or as prisoners of war. Which we are allowed to lock up for the duration of the war based on the Geneva Convention.

    We just have to treat them right. And release them only after we have won the War against Al Qaeda. Since they probably don’t plan on surrendering, I suspect they will be locked up for a long time.

    I never understood why nobody thinks of this. Probably because it is to simple.

  36. 36.

    Shawn in ShowMe

    May 21, 2009 at 6:03 pm

    Really though, WHAT are the alternatives for the really dangerous ones for which all evidence is basically moot?

    Have Harry Reid table the issue (already done) until the White House can line up a few countries to take these prisoners off our hands. Obi-wan-Hillary, you’re our only hope.

  37. 37.

    harlana pepper

    May 21, 2009 at 6:04 pm

    I really hope Obama isn’t behaving this way as an anticipated response to Cheney’s unwarranted and unjust attacks today which were just down right disgusting

  38. 38.

    Martin

    May 21, 2009 at 6:04 pm

    It says right in the article that the idea of “preventative detention” isn’t being used in the context of the Gitmo prisoners . But it looks like we’re headed for an 100 post thread based on the premise that it is.

    That premise was presented in the post, but yes, on closer reading of the first link it seems that John should clean that up.

  39. 39.

    stickler

    May 21, 2009 at 6:04 pm

    As for the Gitmo detainees, there’s really no choice but to try them and let the results fall out as they may. Bush’s fuckups certainly make evidence problematic, but that’s where we’re at and keeping those poor dumb bastards in cages forever is morally obnoxious.

    Try them, and know full well that we’ll have to release some nasty terrorists. We might also end up releasing a few unlucky goatherders who ended up in the clink by mistake.

  40. 40.

    Shygetz

    May 21, 2009 at 6:04 pm

    For everyone saying that preventative detention is okay because some of these guys are dangerous, I would retort “How the fuck do you know they are dangerous?” And add in a little “Who do you trust with the power to preventively lock you up without trial?”

    (By the way, the correct answers are “if I knew for sure that they were dangerous, I could give them a trial–if my only evidence that they are dangerous was extracted under torture, then the evidence isn’t just tainted, it’s unreliable” and “no one”, respectively.)

  41. 41.

    peaches

    May 21, 2009 at 6:06 pm

    Anonomously sourced article, and as has already been pointed out, improperly attributed to the Pres, and no solutions offered at all.

    I know the situation is different, as we are not talking about our own citizens, but if the Chileans, Argentines, and most remarkably the Rwandans can manage to live with their killers and torturers in their midst, what is wrong with us?

    If you can try some of them let them go and just do a better job of reading the briefings and support INTERPOL and cooperate with the Iranians and stuff like that. Stuff that hasn’t been tried yet.

  42. 42.

    Shygetz

    May 21, 2009 at 6:07 pm

    @The Other Steve: How ’bout we treat Drugs as a country and lock up pot smokers until Drugs surrenders?

    ‘Cause it’s not a country, that’s why.

  43. 43.

    AhabTRuler

    May 21, 2009 at 6:07 pm

    KAAAAAHAAAANNNNN

    Ahem.

    Edit: It worked better when I had my para tags. COOOOOOLE!

  44. 44.

    Brachiator

    May 21, 2009 at 6:07 pm

    @Martin:

    Honestly, can any of these people really be that much of a threat to the US if we just stuff them back in the cave in Afghanistan that we found them in?

    Not all of them are from Afghanistan. And yes, the more dangerous ones can still be a threat to the US. Before the general election, no one predicted the increasing instability in Pakistan. No one can predict how hostilities might break out, even if we don’t lump everything into the idea of a global war on terror.

    @The Other Steve:

    How about we treat Al Qaeda as a country and we keep them as POWs until AQ surrenders?

    This would kinda be like the Brits saying “let’s keep them as POWs until the IRA and all its splinter groups surrenders.”

    Really though, WHAT are the alternatives for the really dangerous ones for which all evidence is basically moot?

    This is the crux of the problem. The Bush Administration liked to pretend that either all detainees were dangerous, or that they knew precisely which were dangerous and which were not. Without evidence or trials.

    It’s a mess and I don’t envy the Obama Administration trying to deal with this. Part of the calculation is political. If a former detainee commits some atrocity, then everything unravels.

  45. 45.

    Mark S.

    May 21, 2009 at 6:07 pm

    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.

    The guy who commanded Taliban troops would almost surely be a POW. You don’t have to release him until the war is over (and we are still fighting the Taliban), but you also can’t torture him and all of the other things we’ve probably already have done.

    As for the other guys, if you really can’t prosecute them for anything and you are afraid of releasing them, just treat them as POW’s as well. They certainly do not have any useful information about Al Qaeda now, but you can keep them off the battlefield.

  46. 46.

    Ed Marshall

    May 21, 2009 at 6:12 pm

    If it was something like the British system of preventative detention where you get a window of a certain number of days to hold someone while you build a case to arrest them I wouldn’t like it but it wouldn’t be tyranny either.

    This isn’t the UK though, we have a 6th amendment and I can’t think of any possible way to square that system up constitutionally.

  47. 47.

    Shawn in ShowMe

    May 21, 2009 at 6:12 pm

    Ok. I still stand by my points, but if that’s true, then Obama is just setting up this system for future prisoners-who-cannot-be-tried?

    Or thinking out loud where to put prisoners that you capture outside Afghanistan, the official field of battle. Which is what the 2nd anonymous source also says.

  48. 48.

    bedtimeforbonzo

    May 21, 2009 at 6:12 pm

    “I know what to do with them. Make them have sex with Michele Bachman.

    “That accomplishes two things. It tortures them, and fucks Michele Bachman.”

    I know you’ve already taken a bow, InflatableCommander. But take another.

    Major lol . . .

  49. 49.

    Ed Marshall

    May 21, 2009 at 6:16 pm

    I don’t think this has anything to do with Afghanistan or Iraq either.

  50. 50.

    Emma Anne

    May 21, 2009 at 6:16 pm

    If we don’t have the evidence to convict people, then we have to let them go. It doesn’t matter if we “know” they are dangerous. That is what rights are – you get them even if we really don’t like you.

    IIRC, Mr. Miranda (of Miranda rights) was a child murderer. They knew he did it. But he still had rights.

    I will say this: they aren’t U.S. citizens, and so they can be deported, and we can make sure they never enter the country again. But beyond that we have no choice.

    (edit typo)

  51. 51.

    uila

    May 21, 2009 at 6:17 pm

    Via Digby, DiFi has the same message:

    Yes. The laws of war very clearly say that you can keep a combatant in detention for the length of the conflict. Now this is a bit of an unusual war in that sense, but it is, in fact, a war and it is going to go on… there is no question in my mind that somebody who is classified as an unlawful combatant can, in fact, be kept in detention until the end of this conflict, which means terrorism, against the United States, against her allies, and in the world abates.

    When they promised more transparency, I had no idea this was what they meant. Silly me!

  52. 52.

    omen

    May 21, 2009 at 6:17 pm

    nevermind. thought this got sucked into moderation hell.

  53. 53.

    Disillusioned

    May 21, 2009 at 6:18 pm

    Our Leader’s narcissistic mendacity is breathtaking. From today’s homily:

    “I will never hide the truth because it is uncomfortable…I will tell the American people what I know and don’t know, and when I release something publicly or keep something secret, I will tell you why.”

    This man thinks we are shit on his shoes without brains or sense. Or those who load the teleprompter do. I suspect it’s both.

  54. 54.

    omen

    May 21, 2009 at 6:20 pm

    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.

    how many $ billions have we given to afghanistan & pakistan? they can’t take these people off our hands?

  55. 55.

    Quaker in a Basement

    May 21, 2009 at 6:23 pm

    @asiangrrlMN:

    I would actually disagree with you in assuming that they are inherently dangerous. I am not confident in the reports that they are all terrorists.

    All? Who said anything about all? I said some. So did Mr. Obama in his speech today. Mr. Obama described five separate categories of detainees. The “dangerous-but-can’t-be-tried” category is one of five.

    There is no way they should be held indefinitely without a trial without possibility of release or conviction…[snippage]…we let them go or acknowledge that we fucked up and house them properly (yes, in a jail setting).

    OK, which way do you want to go on this? There’s no way they should be held? Or there is a way they can be held? I’m figuring that being open with the rest of the world about who we’re holding and why we’re holding them would be a major improvement.

  56. 56.

    Dennis-SGMM

    May 21, 2009 at 6:27 pm

    @Ash:

    Really though, WHAT are the alternatives for the really dangerous ones for which all evidence is basically moot? I personally haven’t heard the other ideas yet, and I’ve been wondering since the kvetching began. If there was SOMETHING else possible, what is it?

    You try them in Federal Court – with Alberto Gonzales as their lawyer. They’d get a hundred years even if the only charge was spitting on the sidewalk.

  57. 57.

    anticontrarian

    May 21, 2009 at 6:28 pm

    If we can’t try them, we have to release them, even if they are dangerous terrorists who desire nothing more than to take up arms against America. Because that is what it means to live in a nation of laws, and if you cannot lawfully prosecute someone, then you have to release them.

    As to where to release them, if they genuinely are dangerous terrorists who desire nothing more than to take up arms against America, I say we oblige them, and drop them off on the battlefield, preferably right before the fighting starts. Give them enough time to hook up with their homies and grab an AK, so as to have a fighting chance, and then give them the opportunity to die for their cause. I bet most of them would take it.

  58. 58.

    Jay

    May 21, 2009 at 6:28 pm

    Why just stop with people we label terrorists? Why not lock up everyone we think is a danger but we lack admissible evidence for some reason?

  59. 59.

    Michael

    May 21, 2009 at 6:35 pm

    I’m really hoping we can use such awesome power on conservatives.

    Cheney, Limbaugh, Palin and Beck can be roommates, and can share a waterboarder.

    I’d advocate the whole broomstick thing for Beck, Steyn, Medved and Hewitt, but I’m afraid Steyn might enjoy it too much.

  60. 60.

    les

    May 21, 2009 at 6:35 pm

    Something gets lost in the smokescreen here. What teh fuck does “really dangerous” mean in this context? Outside of the superpowers that make it impossible to hold them in US prisons, anyway? After years of imprisonment and torture? Sure they’re pissed, many of them were before and they all are now. Do they have hidden caches of money that will let Al Qaeda mount attacks it can’t now? Do they have super secret info that no terrorist on the loose has? Do we have some super leader who can magically get other terrorists to accomplish feats no one else can? People act like there’s a massive Al Qaeda invasion fleet off the coast of Florida, just waiting for prisoner #249 to be released so it can invade and topple the US and impose Shania law. Or that huge numbers of terrorists are wandering the Hindu Kush, lost and leaderless, just waiting for the one prisoner to lead them in the final Jihad. Let ’em the fuck go, if Bush so messed up it’s impossible to hold ’em legally.

  61. 61.

    Tresy

    May 21, 2009 at 6:36 pm

    Boy, it’s too bad no other democracy has ever had to deal with terrorism. Otherwise we might ask ourselves what they did to handle it without throwing human rights and due process out the window. If only we had examples…

  62. 62.

    Rosali

    May 21, 2009 at 6:36 pm

    Every time Cheney and his minions start talking about releasing scary terrorists, we all just have to start repeating the name Hamdi over and over again. Hamdi was such a scary terrorist that the Cheney administration argued all the way to the SCOTUS that he should be held indefinitely without trial. But when the SCOTUS ruled that he had due process rights to some sort of trial , the Cheney administration put him on a plane to Saudi Arabia. If he was so dangerous, why did they release him to the hotbed of anti-American terrorism?

  63. 63.

    omen

    May 21, 2009 at 6:41 pm

    who were the gitmo detainees bush let go? was it because of lack of evidence? funny how media didn’t raise an uproar about that, didn’t go into public wailing mode, moaning with worry about how that threatened our security.

  64. 64.

    Dennis-SGMM

    May 21, 2009 at 6:44 pm

    @Tresy:
    Those other democracies may have had the advantage of not being run by a drunken frat boy who provided those who might be genuinely guilty and a genuine threat with an airtight “fruit of the poisonous tree” defense.

  65. 65.

    Mark S.

    May 21, 2009 at 6:45 pm

    . . . so it can invade and topple the US and impose Shania law.

    That don’t impress me much.

  66. 66.

    Shawn in ShowMe

    May 21, 2009 at 6:47 pm

    Germany an option?

    Obama’s trying to convince Germany to take the Uyghur captives, who were falsely imprisoned at Gitmo but would face torture if sent back to China, off our hands.

    The names of nine Uyghurs are on the list that Barack Obama’s special envoy, Daniel Fried, recently handed over to the German government. They currently sit along with some 250 other detainees in the U.S. prison camp at Guantánamo Bay, Cuba. Germany, according to the request of the Obama government, may take in the Uyghurs in order to make the closure of the camp easier.

    Now if only they would take some actual Al Qaeda operatives, then we’d really have something..

  67. 67.

    Dennis-SGMM

    May 21, 2009 at 6:47 pm

    @Mark S.:
    I wish someone would impose Shania Twain on me.

  68. 68.

    Wapiti

    May 21, 2009 at 6:50 pm

    But the simple answer to the problem is to simply put them back where we found them. Honestly, can any of these people really be that much of a threat to the US if we just stuff them back in the cave in Afghanistan that we found them in?

    It’s not like we actually pulled these people out of caves. We just paid bounties to various warlords.

    Unless the problem is that the Bushies, incompetent in everything else, lost the receipts and now we can’t return them?

  69. 69.

    Quaker in a Basement

    May 21, 2009 at 6:51 pm

    In today’s speech, Mr. Obama said that 21 detainees have already been ordered released by U.S. courts and another 50 have been identified who can be safely released to other countries. Together, that’s more than a quarter of the remaining prisoners at Guantanamo.

    The job’s not done, but it’s progress.

  70. 70.

    les

    May 21, 2009 at 6:52 pm

    @Tresy:

    Word.

  71. 71.

    omen

    May 21, 2009 at 6:56 pm

    @Shawn in ShowMe:
    @peaches:

    ah, ty.

  72. 72.

    Seebach

    May 21, 2009 at 6:57 pm

    I feel sorry about Obama, because the Republicans don’t want to have to discuss this sticky legal hellhole with any honesty or integrity. If one of those people is released and is caught attacking us again, Obama will be responsible for one again Jimmy Cartering/Michael Dukakising the Democratic Party.

  73. 73.

    Calouste

    May 21, 2009 at 6:58 pm

    @Tresy:

    Other democracies have made their own mistakes dealing with terrorism. For example, I guess you have never felt the discomfort of hearing Gerry Adams being dubbed over on the BBC because the government thought that even hearing his voice was too dangerous for the British public.

  74. 74.

    Rick Taylor

    May 21, 2009 at 6:59 pm

    @Ash:

    Really though, WHAT are the alternatives for the really dangerous ones for which all evidence is basically moot? I personally haven’t heard the other ideas yet, and I’ve been wondering since the kvetching began. If there was SOMETHING else possible, what is it?

    I question the idea there are these guys who really are dangerous, trust us, we wouldn’t lie to you. . .and yet they can’t be convicted, even by a military court martial. Of course governments given this kind of power will abuse it; they always do. Always. Ask any DFH. This used to be something conservatives understood.

    But if worst comes to worst, and we end up releasing someone who really was a bad guy, it’s not the end of the world. There are plenty of people out here who hate us; thousands. More now that we’ve resorted to torture, humiliation, etc. A few more are not going to make much of a difference. These are not superheros. Meanwhile, becoming known as a nation that kidnaps people from around the world and holds them without any form of due process and tortures them is not itself without any risk or cost.

  75. 75.

    omen

    May 21, 2009 at 7:04 pm

    @Seebach:
    If one of those people is released and is caught attacking us again, Obama will be responsible for one again Jimmy Cartering/Michael Dukakising the Democratic Party.

    good thing we can point to bush setting the precedent first.

    i worried about that scenario, too, if photos were released, provoking violence. but unlike carter or dukakis, i have more faith in obama launching counter-offensives against political attacks.

  76. 76.

    cyd

    May 21, 2009 at 7:05 pm

    How about we treat Al Qaeda as a country and we keep them as POWs until AQ surrenders?

    This would kinda be like the Brits saying “let’s keep them as POWs until the IRA and all its splinter groups surrenders.”

    Actually, during the 1970s, the Brits did intern IRA terrorists without trial. Also, during the 1950s, when Singapore and Malaysia were under British control and undergoing a communist insurgency, the Brits introduced ordinances that allowed detention without trial. I’m not defending the practice, obviously—just pointing out that your example cuts the wrong way.

  77. 77.

    Seebach

    May 21, 2009 at 7:06 pm

    good thing we can point to bush setting the precedent first.

    IOKIYAR

  78. 78.

    Fulcanelli

    May 21, 2009 at 7:11 pm

    @Dennis-SGMM: This I could handle, yes.

    So we can’t put them in a US Supermax prison because the Real Americans(TM) will wet their beds from now until eternity, and we can’t classify them as POW’s and afford them Geneva Convention protection because they’re country-less. Am I correct?

    So we’re gonna hold military tribunals, not trials, and if when they’re found guilty, then what? Prison? Where? Venusian Penal Colony?

    Crawford or Dallas, TX, Kennebunkport, ME and St. Michael’s, MD all sound feasible.

    Or do they hang? WTF?

  79. 79.

    Bubba Dave

    May 21, 2009 at 7:11 pm

    Really though, WHAT are the alternatives for the really dangerous ones for which all evidence is basically moot?

    Give ’em an AK-47 and release them in Yoo’s office/Bybee’s office/Dubya’s home. They’ll do something we can legitimately arrest them for pretty soon, and possibly improve our country in the process.

  80. 80.

    binzinerator

    May 21, 2009 at 7:11 pm

    @Ash:

    Really though, WHAT are the alternatives for the really dangerous ones for which all evidence is basically moot?

    If all the evidence is moot then how do they know which ones are the dangerous ones?

    And if they could know, then what? Dangerous does not equal guilty. They will be found not guilty because the the bushies fucked the evidence so badly.

    Consider what we do with other people we suspect or we know are dangerous, men who, because they have a history of beating their wives, there is reason to suspect they might be likely to go shoot their wife if we let them go. They can be held for wife beating, they can be held for murder. But they can’t be held because of what they might do, even when it is possible they will do it. And hold them indefinitely? That’s illegal.

    And you know what? Some of those wife beaters do exactly what we fear they might do — they ignore restraining orders and go and blow away their wives. And people angrily wonder why it couldn’t be prevented, why the guy couldn’t have been locked up to prevent that.

    It’s because when you start locking people up based on what the state thinks they might do, you are looking at a solution something far worse than the problem.

    Another thing: We can be reasonably certain that some of the detainees are indeed dangerous and some are guilty and some are both but that is a conclusion based on the logic of statistics, not law.

    And what about those who are not guilty? Or not guilty of serious crimes? Or not dangerous? By the same reasoning they must be there too. The whole due process and evidence thing is our system’s best effort to sort that out. And that got tossed along with any reliable evidence.

    So do we simply pretend the law doesn’t apply here? Or do we rewrite it so it legally doesn’t apply whenever whoever is in charge decides it doesn’t?

    So we decide to imprison all of them indefinitely without charges. Guilty and not guilty alike.

    I ask, what does it say for a nation to knowingly imprison people who are not guilty of a crime? What does it say for a nation to agree that the determination of guilty and not guilty is unnecessary to imprison someone? What does it mean for a nation that decides their entire legal system — which is based on due process — is optional?

    If evidence is moot our legal system is moot.

    It speaks of a deep fear. One that is eroding the underpinnings of the nation. How can one expect justice in a society like that? How can such a society last? It can’t, not for any length of time.

    The horrible irony is that this is exactly the terrorists’ goal but it was effected by Bush and his people.

    The enormity of Bush’s fuckup here still hasn’t sunk in to many people. It is as big a disaster as 9/11, as the Iraq war, as the economy. Bush has fucked us economically, militarily, and now we see an even deeper blow. He’s fucked the very thing the nation was based on.

    I have said before and I will say again, the biggest ally of the terrorists was Bush.

  81. 81.

    Chris Andersen

    May 21, 2009 at 7:16 pm

    I think I understand where Obama is going with this “preventive detention” concept. The question I would have is this, “How is this different from simply declaring them to be POWs?” Why do we need to create yet another category of detainee?

  82. 82.

    mcc

    May 21, 2009 at 7:16 pm

    If all the evidence is moot then how do they know which ones are the dangerous ones?

    “The ones that it would create a political fracas to set free”

  83. 83.

    RSA

    May 21, 2009 at 7:18 pm

    As much as I hate the bastards who put us in this position, I think that Obama’s stuck with a glaring contradiction:

    I am not going to release individuals who endanger the American people… Having said that, we must recognize that these detention policies cannot be unbounded… 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.

    One of the scary things about being governed by laws is that you don’t get to predetermine the outcome of trials. And this means that Obama should be saying that we’re not going to release individuals that we can prove endanger the American people. Sometimes we’re not going to be able to prove that, and we’ll have to let dangerous people go. But the alternative is a justice system that’s just window dressing, providing cover for whatever we’ve decided to do beforehand.

  84. 84.

    Fulcanelli

    May 21, 2009 at 7:24 pm

    I’m trying to be optimistic that Obama’s first term will be not be wasted attempting to clean up Bush’s mess with his hands tied, but it’s getting harder and harder to keep that faith.

    Any lawyers here who can briefly elaborate on what happened with the Joseph Wilson/Valerie Plame mess that got tossed recently?

  85. 85.

    Dennis-SGMM

    May 21, 2009 at 7:25 pm

    @binzinerator:

    He’s fucked the very thing the nation was based on.

    Bush also fucked us out of our courage and our confidence in the very institutions that allowed this republic to survive for over two hundred years. He succeeded where George III, Hitler and Tojo, and the entire Soviet Union failed.

  86. 86.

    Tonal Crow

    May 21, 2009 at 7:25 pm

    “Preventive detention” is a perilous concept. We do already use it for certain sex offenders, wherein they periodically get a trial to evaluate whether they’re still “too dangerous to release”. I can’t remember the last time one got released, so this system has become the effective equivalent of life imprisonment [1], but more expensive and with more cruelty (for both the offender and her victims). And, this mechanism seriously compromises the 1st Amendment’s prohibition on creating thought crimes, since the evaluation of potential danger is based entirely upon what the offender thinks, not what she does.

    Which brings us back to “preventive detention” for terror suspects. Historically, our law has allowed us to detain POWs for the length of the conflict. I think this is probably the proper designation for some of these suspects, but it does raise the question of what we mean by “the length of the conflict”. I don’t have a good answer to that. But I much prefer handling this issue under the POW rubric than as another form of “preventive detention”, since doing so helps limit the spread of “preventive detention” through our legal system, and thus helps us avoid building the “Department of Pre-crime” — something that the GOP is all too eager to do.

    [1] We should give everyone a determinate sentence. Sometimes that will be a life sentence.

  87. 87.

    Comrade Kevin

    May 21, 2009 at 7:30 pm

    The laws of war very clearly say that you can keep a combatant in detention for the length of the conflict. Now this is a bit of an unusual war in that sense, but it is, in fact, a war and it is going to go on…

    Say, DiFi, against whom have you and your colleagues passed a declaration of war?

  88. 88.

    Curt

    May 21, 2009 at 7:32 pm

    Here’s the most relevant of Tim’s posts on the topic, I think.

  89. 89.

    Shawn in ShowMe

    May 21, 2009 at 7:38 pm

    So do we simply pretend the law doesn’t apply here? Or do we rewrite it so it legally doesn’t apply whenever whoever is in charge decides it doesn’t?

    You rewrite the law because 1) the Geneva conventions don’t say a word about suspected terrorists and international terrorist networks 2) people suspected of terrorism have a right to legal protections.

  90. 90.

    Marshall

    May 21, 2009 at 7:39 pm

    1.) People who can’t be convicted, but who were not captured “on the battlefield,” should be let go, with an apology if necessary.

    2.) People captured on the battlefield should be held until they are willing to accept parole (and until we are willing to grant it). In most long wars, POWs were eventually paroled – one of my ancestors, for example, was captured by the Union, sent to a prison camp in Illinois, and paroled back to Georgia in 1864. We paroled Nazi POWs who were deemed harmless and injured (amputees, for example). If we aren’t willing to parole them, we should try them.

    Parole could involve an oath not to take up arms again, for example.

    I think it would be reasonable to accept an expansive view of “on the battlefield,” as long as it has some limitations. (Anywhere in Afghanistan, sure. At the airport in Chicago with no weapons, no.)

    We are a democracy and a great power. These are a bunch of pip-squeaks. We need to start acting like the rule of law and the Constitution meant something.

  91. 91.

    Hob

    May 21, 2009 at 7:42 pm

    @les: YES. Thank you. I’m at a loss to understand what otherwise sensible people (Quaker in a Basement, just to pick on someone) are talking about with this “but some of them are really dangerous” stuff.

    OK, so maybe there’s a guy in Guantanamo who was a terrorist mastermind who had mad battlefield skills and a hardon for attacking Americans, and was also the only one who knows all of Al Qaeda’s most fearsome attack plans and Rolodex numbers… from 2002. Explain to me how, after sitting on his ass in a dungeon all this time, he is now any more dangerous in the real world than 10,000 other anonymous assholes who just joined the jihad last week. Unless he literally has either physical or mental superpowers, this makes no goddamn sense. Whatever evil thing he may try to do, either we’re already defending against it to the best of our ability, or we’re not and we’ll be fucked anyway when some other guy tries the same damn thing.

  92. 92.

    Marshall

    May 21, 2009 at 7:46 pm

    Explain to me how, after sitting on his ass in a dungeon all this time he is now any more dangerous in the real world than 10,000 other anonymous assholes who just joined the jihad last week

    Explain to me how anyone on the outside would trust anyone who was suddenly released after a long time on the inside. They would assume he was compromised.

  93. 93.

    Hob

    May 21, 2009 at 8:00 pm

    Also: @binzinerator:

    And you know what? Some of those wife beaters do exactly what we fear they might do—they ignore restraining orders and go and blow away their wives. And people angrily wonder why it couldn’t be prevented, why the guy couldn’t have been locked up to prevent that. It’s because when you start locking people up based on what the state thinks they might do, you are looking at a solution something far worse than the problem.

    And “preventive detention” makes even less sense for the Guantanamo prisoners than it does for the wife-beaters. In one case you’re talking about tens of thousands of guys moving around the country — no way the local police can realistically keep an eye on everyone with a restraining order. In the other case you have a couple of dozen guys who are (or should be by now) better known to our feds than anyone else on earth.

  94. 94.

    Rosali

    May 21, 2009 at 8:16 pm

    There was rampant hysteria all over Gitmo. They were ready to string up the Muslim chaplain James Yee for treason and when the dust settled, all they charged him with was – get this – having pr0n on his computer. And even that was thrown out in the end. After all the lies, I no longer take the claims of dangerousness at face value.

  95. 95.

    omen

    May 21, 2009 at 8:19 pm

    the pottery barn rule: you break it, you bought it.

    does that apply to detainees’ broken psyche?

  96. 96.

    JasonF

    May 21, 2009 at 8:22 pm

    This would be political suicide if anyone who mattered suggested it, but my thought is that these people — these dangerous people who want to kill us — should, if they cannot be prosecuted, be released.

    Yes, that means setting people who mean us harm out into the world. But the reality is that there are already plenty of people who want to kill us. How many times did we hear that the number three guy in al Qaeda had been killed? Sure, if we release Khalid Sheik Mohammad, he’ll immediately get to work on coming up with a way to kill us all. But there are already a bunch of guys like him coming up with a way to kill us all. Adding one more to the mix may make us slightly less safe, but the marginal decrease in safety does not, in my opinion, outweigh the very real harm that is done to our nation if we become a nation that holds people indefinitely on the basis of allegations that can’t be proven.

  97. 97.

    Tsulagi

    May 21, 2009 at 8:31 pm

    Preventive detention. Wonderful.

    Let’s see, we had the Bush Doctrine largely based on preventive war. Now, if this is his intended direction, we may have the Obama Doctrine based on locking up potential evilthinkers indefinitely before they may become evildoers. Well, guess if you had wholesale implementation of the Obama Doctrine that would eliminate any need for the Bush Doctrine. How progressive.

    As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience’s sake. — Barack Obama, Inaugural Address.

    Seems more than once since that day when the transcendy words hit the pavement they veer hard right toward Crawford. Or a previously undisclosed location.

  98. 98.

    Tim F.

    May 21, 2009 at 8:46 pm

    Bush left his successor with only two choices. The radical decision would restore the authority of the US Constitution, come what may. The wrong decision is anything else.

    I always knew that Barack Obama would never go whole hog for the right decision, given every other pile of crap that president fuckwit left in our augean stables. I guess I hoped, stupidly, that Obama would stay within a few bad decisions of the right course.

    This detainee decision reflects exactly the shit dilemma that I described in my first post on this. We can’t try them legally thanks to torture. We can’t try them extra-legally and expect first-world countries to take us seriously. We can’t let them go or Republicans will suicide-bomb Congress.

    There is no least-bad answer to this question. At least as long as Republicans remain a party and DC remains wired to mostly care what they think, there isn’t any answer at all.

  99. 99.

    ThatLeftTurnInABQ

    May 21, 2009 at 8:54 pm

    Bush also fucked us out of our courage and our confidence in the very institutions that allowed this republic to survive for over two hundred years. He succeeded where George III, Hitler and Tojo, and the entire Soviet Union failed.

    Word.

    As much as I loathe Bush, I have to say he had plenty of help. Nixonland didn’t just spring up overnight on 9-12, it was created slowly, step by step, by every leader who ever preached fear and every American who listened to or was influenced by them, for decades. The “home of the brave” has been a demolition site for a long time, and many many Americans have been pounding away on that tired old dilapidated structure.

    We’ve come a long way since FDR said “we have nothing to fearh but fearrhh itself…”

    If we want to get back to that place, we need to tell anybody who tries to preach fear, “STFU you f*cking coward! Now get the hell out of my way, I have work to do!”

  100. 100.

    Svensker

    May 21, 2009 at 8:57 pm

    @binzinerator:

    You sing it, honey. Them is true words.

  101. 101.

    Quaker in a Basement

    May 21, 2009 at 8:59 pm

    OK, so maybe there’s a guy in Guantanamo who was a terrorist mastermind who had mad battlefield skills and a hardon for attacking Americans, and was also the only one who knows all of Al Qaeda’s most fearsome attack plans and Rolodex numbers… from 2002. Explain to me how, after sitting on his ass in a dungeon all this time, he is now any more dangerous in the real world than 10,000 other anonymous assholes who just joined the jihad last week.

    The same could be said for any convicted terrorist sitting in Florence right now. (Yes, I know someone sitting in Florence got the benefit of a trial–we’re discussing whether anyone at Guantanamo is threat.) Should we turn those prisoners loose because they are no longer in the loop?

    First things first. I think Mr. Obama’s speech today lays the groundwork for cleaning up the mess. He’ssays going to sort out the detainees who can be tried or released and let existing processes take their course. He admits there are some who be left over. If he can at least tell us who they are and why they’re being held, then we can at least have an informed debate. We’ll also be able to give the rest of the world an explanation for what we’re doing.

    Perfect? Not by a long shot. Better than where we are today? Absolutely.

  102. 102.

    someguy

    May 21, 2009 at 9:05 pm

    Except in the rare cases where you have some warcrime or U.S. crime with which you can charge captured AQ, you have to let them go.

    This isn’t an episode of 24, people. The president can’t just make shit up as he goes along. Seriously, some of you people are starting to sound like Bushies.

    Now about those extralegal ‘targeted killings’ in third countries…

  103. 103.

    Hob

    May 21, 2009 at 9:12 pm

    Q in a B: What the hell? The whole point is that “being a threat” is NOT the same as having been convicted of a crime. If that was your idea of a reductio ad absurdem… well, you got the “absurd” part right at least.
    There are plenty of people in prison who would not commit the same crime again. They stay in prison because they’re serving a sentence for a crime of which they were convicted. You don’t get to hand-wave away that part just because you’d rather talk about who is a threat.

  104. 104.

    Tonal Crow

    May 21, 2009 at 9:15 pm

    @Quaker in a Basement:

    Explain to me how, after sitting on his ass in a dungeon all this time, [an “untryable” terror suspect] is now any more dangerous in the real world than 10,000 other anonymous assholes who just joined the jihad last week.

    The same could be said for any convicted terrorist sitting in Florence right now. (Yes, I know someone sitting in Florence got the benefit of a trial—we’re discussing whether anyone at Guantanamo is threat.) Should we turn those prisoners loose because they are no longer in the loop?

    More like, they haven’t been convicted of anything, can’t be convicted of anything, *and* they’re not in the loop. Imprisonment following conviction is punishment for the crime of conviction. Imprisonment without conviction (unless pending speedy trial) is — except for the POW exception — punishment based upon mere suspicion, and thus unlawful.

  105. 105.

    sparky

    May 21, 2009 at 9:19 pm

    a couple of cheap observations.

    why, exactly, is everyone buying into this Bush notion of a war on terror? terror is a tactic–it’s not an ideology. therefore, the notion that we have to detain people who might use certain tactics in the service of an ideology. how can you ever stop a tactic? answer: you can’t. SO IT CAN NEVER EVER END. that’s why Bush defined it that way. stop assuming the point away.

    second the reason certain groups use terror against the US is because we are in their countries. hello? anyone home? anyone paying attention to the US occupation of all kinds of countries lately? WTF do you think is going to happen when you do that? how about we consider something crazy? like, i dunno, LEAVING?

    incidentally when we talk about picking people up we are not talking about just Afghanistan. we are talking about Paris, and London, and yes, New York. or if you like Chicago where Jose Padilla an American citizen, was whisked away.

    this is really not a difficult thumb-sucking situation. either we are at bottom scared that OMG scary furrin people might get us! or we say, gee, having a republic entails some potential danger but THE BENEFITS OF HAVING A REPUBLIC outweigh the benefits of an AUTOCRACY.

    apparently the answer is we would rather have an autocracy.

    we just killed a million people in Iraq and we are still scared of a bunch of ruined men we detained for five years. we suck as a country and as human beings.

  106. 106.

    joe from Lowell

    May 21, 2009 at 9:22 pm

    I can’t believe how badly people are misunderstanding this speech.

    Here’s the important part, right here:

    like other prisoners of war

    Prisoners of War! POWs! Do you understand what that means?

    People we hold who are not brought to trial on criminal charges – whether in civil courts or in the “regularly constituted tribunals” called for in Article 3 of the Geneva Conventions, are going to be treated as POWs.

    This is one of the most significant restorations of the rule of law and the Constitution since Bush and Cheney started trashing them, at least as big as the Boudemienne decision granting detainees at Guantanamo habeas corpus rights.

  107. 107.

    Old Gringo

    May 21, 2009 at 9:23 pm

    The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the United States Congress, who were waging an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams. Proponents claimed the acts were designed to protect the United States from alien citizens of enemy powers and to stop seditious attacks from weakening the government. The Democratic-Republicans, like later historians, attacked them as being both unconstitutional and designed to stifle criticism of the administration, and as infringing on the right of the states to act in these areas. They became a major political issue in the elections of 1798 and 1800. One act—the Alien Enemies Act—is still in force in 2009, and has frequently been enforced in wartime. The others expired or were repealed by 1802. Thomas Jefferson held them all to be unconstitutional and void, and pardoned and ordered the release of all who had been convicted of violating them… The Alien Enemies Act (officially An Act Respecting Alien Enemies; ch. 66, 1 Stat. 577) authorized the president to apprehend and deport resident aliens if their home countries were at war with the United States of America. Enacted July 6, 1798, and providing no sunset provision, the act remains intact today as 50 U.S.C. § 21–24. At the time, war was considered likely between the U.S. and France.

    Deportation is problematic in most cases. There is also a possibility that a majority of these fellows might actually prefer to remain in American custody. They are likely to be treated better than in their own countries.

    As an odd aside, and if I understand my history properly, half the country wanted war with France and the other half wanted war with Britain. Adams tried to walk a fine line between the two factions and avoid all out warfare with either country – so many of the persons impacted by these acts were advocating war, not peace.

  108. 108.

    Svensker

    May 21, 2009 at 9:31 pm

    @sparky:

    You sing pretty good, too, Sparky.

    What an unusual idea, not messing with other people. I don’t think it would work — how would those other folks know whether to shit or die if we weren’t messin’ wichem?

  109. 109.

    kay

    May 21, 2009 at 9:31 pm

    I’m going to wait, rather than rely on a paragraph in a speech.
    Rachel Maddow sounds like the worst hysterics on the right. I’m not going there.
    For someone who claims to be so interested in justice, Maddow freely parses words to imply the worst possible interpretation, adds whole phrases, and injects intent.
    Not good. I don’t think it’s good practice to take the actual sentence the person stated and then add 15 words of your own.
    I saw this from Maddow in the primary. She goes a tad beyond the facts.

  110. 110.

    kay

    May 21, 2009 at 9:33 pm

    @joe from Lowell:

    It’s premature. In my opinion. It’s preemptive outrage?

    Maybe.

  111. 111.

    Comrade Kevin

    May 21, 2009 at 9:36 pm

    @joe from Lowell:

    Prisoners of War! POWs! Do you understand what that means?

    I don’t recall the US declaring war against anyone.

  112. 112.

    Old Gringo

    May 21, 2009 at 9:46 pm

    I don’t recall the US declaring war against anyone.

    And there has been a long history of that, see Quasi-War above. We haven’t formally declared war on anyone since WWII, and there have been many other instances of this blatant disregard of Article One, Section Eight since the founding era.

    From Wiki:

    “On at least 125 occasions, the President has acted without prior express military authorization from Congress.[4] These include instances in which the United States fought in Korea in 1950, the Philippine-American War from 1898-1903, and in Nicaragua in 1927.

    The United States’ longest war was fought between approximately 1840 and 1886 against the Apache Nation. During that entire 46-year period, there were never more than 90 days of “peace.”

    At least 28 conflicts and campaigns comprise the Indian Wars. These conflicts began with Europeans immigrating to North America long before the establishment of the United States. For the purpose of this discussion, the Indian Wars are defined as conflicts with the United States of America. They begin as one front in the American Revolutionary War in 1775 and are generally agreed upon as concluding with the surrender of the Apache chief Geronimo in 1886.

    The American Civil War was not a true war in the sense that the Union Government held the position that secession from the Union was illegal and military force was used to restore the union by defeating in battle the military forces of the illegally rebelling states. No Southern ambassador or diplomat was accorded any status by the Union so an armistice or peace treaty was never an option because that would legitimize the Confederacy as an actual Nation. The legal right for armed force lay with the Constitution of the United States, which the Union interpreted as unbreakable. The actions of the Southern states were therefore illegal (according to the Union) because they were attempting to drop the Union as their form of Government, which is considered rebellion or insurrection.”

  113. 113.

    joe from Lowell

    May 21, 2009 at 10:13 pm

    Fortunately, Comrade Kevin, the Geneva Convention’s obligations and standards for enemy soldiers captured don’t depend on a formal declaration of war. An “Authorization of Military Force” – which seems to have been the fashion for the past half century – or even just an action taken by the president on his own counts exactly the same under Geneva. I suppose if you have nothing better to do with your life, you can dedicate it to coming up with a different term to apply to the people we took prisoner (and the Americans the enemy took prisoner) in Korea, Vietnam, Iraq, Afghanistan, and Iraq again, but it really won’t make any difference. They’ll still be Prisoners of War.

    kay,

    Sometimes you have to take yes for an answer.

  114. 114.

    Quaker in a Basement

    May 21, 2009 at 10:23 pm

    The whole point is that “being a threat” is NOT the same as having been convicted of a crime. If that was your idea of a reductio ad absurdem… well, you got the “absurd” part right at least.

    Not even close, Hob.

    It was you who made the argument that anyone who has been sitting in Guantanamo since 2002 can’t possibly be a threat because…well, because they’ve been in Guantanamo all that time.

    Applying the same logic, anyone who has been away for any reason at all for seven years also can’t possibly be a threat. The assertion is yours, not mine, and it’s just not defensible.

    There seems to be a great deal of shouting and throwing up of hands that Mr. Obama isn’t simply going to precipitously throw open the gates of Guantanamo and set all 250 detainees free.

    Shout all you like. Ain’t going to happen no matter who’s the President.

  115. 115.

    someguy

    May 21, 2009 at 10:24 pm

    Just ‘cuz you use the Army, doesn’t make it a war for Geneva Conventions purposes, Joe. It helps to have a state or a guerilla group that follows a chain of command. Al Qaida has neither – it’s a loose affiliation of cells. The Supreme Court has said that the Geneva Conventions apply and captured AQ are to be treated as enemy prisoners of war – but just because the S Ct. chooses to interpret international law that way doesn’t make it true or effective in the eyes of other nations. We can’t hold them forever under the US’s unique interpretation of Geneva that these are prisoners of war – they are only EPW insofar as constraining government behavior goes. As for military commissions for war crimes and indefinite detention, those are both still out of bounds. Y’know, unless you want the U.S. government to ad yet another war crime to the list.

  116. 116.

    CT

    May 21, 2009 at 11:07 pm

    Obama’s making the best of a rotten situation Bush left him-as he said in his speech, closing Guantanamo isn’t causing the problems-opening it in the first place has got us in this mess. It would have been far preferable is someone like KSM had been treated humanely from the get-go, so he could be tried openly. But I’m not upset if he stays locked up under the conditions Obama sketched out in his speech.

  117. 117.

    Original Lee

    May 21, 2009 at 11:13 pm

    @binzinerator: Exactly. Why aren’t we hearing this more? Because it requires: 1) a brain capable of rational thought; and 2) some modicum of empathy. Both of which many of our Congresscritters and media talking heads appear to lack.

  118. 118.

    oh really

    May 21, 2009 at 11:33 pm

    I don’t envy Obama’s task at all. This is an almost impossible mess to clean up.

    Obama’s not talking about the past — this is about the future.

  119. 119.

    windy

    May 21, 2009 at 11:57 pm

    Prisoners of War! POWs! Do you understand what that means?

    If he’s just going to declare them POWs, why does he need a whole new ‘legal regime’ for them?

    “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.”

  120. 120.

    Comrade Kevin

    May 22, 2009 at 1:43 am

    @joe from Lowell: Do the Geneva Conventions cover non-government actors?

  121. 121.

    Mike D.

    May 22, 2009 at 3:53 am

    Not to quibble, but he says “prolonged detention” in that excerpt, not preventive.

  122. 122.

    kay

    May 22, 2009 at 8:30 am

    I think the human rights lawyers who would not be quoted by name are not going to prevail, or have any place at the table, if they refuse to acknowledge that there are competing interests here.

    There are the individual detainees interests, there are the broader due process interests and there is a national security interest.

    I completely understand zealous advocacy on behalf of individual detainees. That’s one issue. I understand the broader due process interest, that’s another issue. What I don’t understand is why they’re pretending that the security interest can be completely dismissed.

    Because it won’t be. It’s a reality. It’s at the table. Closing your eyes and hoping it goes away because it is sometimes at odds with your position is just stupid. They have to acknowledge the security interest, and address it head on. It’s not going away, and it’s real.

  123. 123.

    kay

    May 22, 2009 at 8:43 am

    For example. It might be more profitable in the interest of both the individual detainees and the broader due process issue if the human rights lawyers can be less “dismayed” and more specific.

    Lay this out. Lay out a plan for the 20 detainees who can’t be brought into any forum. They don’t like where the Holder plan is going? Offer an alternative. And, sign your name.

  124. 124.

    cfaller96

    May 22, 2009 at 10:28 am

    Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

    President Obama, we used to call these people “suspects.” Perhaps you’ve heard of the term?

    The police, the FBI, and the CIA do have the ability to deal with suspects. This isn’t as hard as people are making it out to be.

  125. 125.

    cfaller96

    May 22, 2009 at 10:34 am

    Kay said:

    What I don’t understand is why they’re pretending that the security interest can be completely dismissed.

    It’s not that it’s dismissed, it’s that there’s nothing new about these “competing security interests.” Democratic societies have ALWAYS been at risk for terrorist attack, because democratic societies have always shied away from preemptively incarcerating any people that might want to do us harm.

    There’s nothing “new” about any of this debate.

  126. 126.

    kay

    May 22, 2009 at 12:11 pm

    @cfaller96:

    It is dismissed, on this thread and on television, on programs like Maddows. It is not unimaginable that the potential victims of a terrorist attack have an interest. They do. Incidentally, it is not a stretch to say that it is a “human right’s interest”. Not being blown up is very much a human right.

    If we’re going to ignore that the prosecutor has as much a duty towards those potential victims as he does toward the specific detainees (process) and his broader duty to the constitution, then we’re not arguing policy, we’re arguing detainee defense.

    Nothing wrong with arguing detainee defense. I’m a big fan. Just don’t call it a policy discussion, and don’t imagine that the state has no competing interests, not all of which are suspect and inherently evil. This is tough to balance. What I object to is pretending it’s easy.

  127. 127.

    kay

    May 22, 2009 at 1:37 pm

    @cfaller96:

    I think I can make it shorter. When Eric Holder, who was in the DOJ during the Clinton Administration, where terrorists were prosecuted and convicted in federal courts, when that person says “I have concerns, there’s a tension here that I can’t reconcile between my very real and very immediate conflicting duties and responsibilities” you can’t come back with “that’s all bullshit! You have no legit concerns! Just shut up!”

    How is Holder different than the Bush Administration? Because he asked for an opinion. The response to that is to insist he has no legit concerns? That our concerns are valid and important but his are made-up bullshit, and don’t even deserve recognition?

    Well. That worked out well.

  128. 128.

    binzinerator

    May 22, 2009 at 4:03 pm

    @kay:

    Not being blown up is very much a human right.

    WTF? So is not being beaten to death for your shoes or not being shot by some threatening a-hole or not being run over by some air-headed yahoo driver yakking on his cell phone or not being blown up in your own comfy surburban home by a falling jetliner. So what’s your point?

    Is not being blown up somehow a bigger extra-special human right? Is it less so if one is blown up by a dust explosion while working in a grain elevator, or by a ruptured gas main, as opposed to, say, by a ball-bearing encased plastic explosives detonated by a scary muslim jihadi terrorist shouting Allah Akbar?

    What I don’t understand is why they’re pretending that the security interest can be completely dismissed.

    The security interest aren’t dismissed. It’s just frikkin’ obvious to any one with an ounce of sense that the security gained by potential attack victims is outweighed by the dangers, injustice and abuses of locking up an actual bunch of innocent people.

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