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May 22, 2009

Comments

I am having trouble picturing the sort of person who would be a candidate for "preventive detention".

Someone who can be proved to have committed a crime gets sentenced to prison. That's not PREVENTIVE detention. So the first requirement is: someone who CANNOT be proved to have committed any crimes.

Lots of things are defined as crimes. So our preventive detainee must be someone who cannot be proved to have done much of anything before we caught him. And yet there must be a reason we consider the man dangerous.

One possibility: he declares HIMSELF to be our enemy, bent on our destruction. He does not confess to having DONE anything yet, mind you -- not even conspired with or "materially supported" people who have. And we cannot PROVE he has committed those crimes, either. He is merely a self-declared "enemy combatant" and proud of it. If such a person can be imagined, would he not be in essence a POW? There's no moral dilemma about holding POWs, is there?

Now, I suppose we can imagine a similar person who does NOT declare himself an enemy combatant. We're holding him prisoner. We can't prove he has committed any crimes. He maintains he's NOT a member of al-Qaida. We might believe he's lying about that, but here's a question: will Al-QAIDA believe he's lying? Would a terrorist group welcome back a man who, in order to get out of prison, denies his allegiance to them?

I must suppose that Obama has in mind SOME profile of the archetypal candidate for "preventive detention". Dick Cheney, maybe?

--TP

The glow FINALLY coming off?

This guy scares the pants off me, and I don't scare easily.

Bless you for the big red type.

Obama and his people have known all along this was the path they were going to take, or he'd have been putting out a very different message about the prisoners than the one he's been sending since early February.

What's most appalling is the level of cowardice, the pandering to the mindset of October 2001 after all we've learned since, and all the time people have had to come to their senses...

He's simply choosing not to lead on this issue. Or, more accurately, he wants the pretty words to be considered leadership, while he caters to the most ignorant, stupidly fearful streak in the society.

We have a form of preventative detention in the United States already, it's called "civil commitment." As noted in this law review article, it is open to abuse even though a judge must make the decision to commit someone.

But this is really a horrible and terrifying decision on Obama's part. I can't imagine WTF he's thinking. With Bush I could chalk it up to a general ignorance of the law and constitution combined with indifference and a lack of empathy, plus a push by his VP to go all fascist. But Obama, a Harvard educated lawyer, who taught constitional law (I think), I just don't know. I mean WTF? WTFF?

So let's see, which of the complaints in the Declaration of Independence does this fall under... Aha! This:

For depriving us in many cases, of the benefit of Trial by Jury

Maybe this:

For transporting us beyond Seas to be tried for pretended offences

He's got a few more to go until he reaches Bush's total, I guess. Small comfort.

We are screwed.

Obama's proposal to hold some of the prisoners indefinitely without trial will have to pass Congress, yes?

Here we really pay the price for the cringing pasty grey "leadership" that is Harry Reid. I'm wondering if 41 Democrats could be gotten to filibuster this. Oh, the question answers itself; of course not.

Could it simply be defeated in the House? I'm grasping at straws, probably...

You know, what's to understand? He really was pals with Ayers, it was no smear. You'll figure that out in time.

So, anyway, in light of this, what's your opinion on Obama's Civilian Security Force?

Obama's proposal to hold some of the prisoners indefinitely without trial will have to pass Congress, yes?

I don't know, Nell. Even if Congress might be prone to defeat it, couldn't Obama just claim the authority under his imaginary "Commander in Chief powers"?

All of this is a classic example of the danger of putting one's hope in lesser evils like today's Democratic Party. There is no question that it is a lesser evil (compare and contrast Obama's speech to Cheney's for proof of that), but it just as certainly cannot be counted on to defend our basic civil liberties or even our system of government.

Here we really pay the price for the cringing pasty grey "leadership" that is Harry Reid. I'm wondering if 41 Democrats could be gotten to filibuster this. Oh, the question answers itself; of course not.

If we have any chance of getting someone in DC to push back against this, I think it's important to get off the ridiculous meme that Congressional Democrats are weak-kneed progressives. The leadership of the Democratic Party is deeply committed to militarism and authoritarianism...with a human face of course. Our best hope is that they are weak-kneed enough that they can be threatened by a revolt of their base. The danger lies in their continued willingness to defy their electorate and vote their values. And Reid is a symptom, not the disease. He has the full support of Senate Democrats. His faults are his party's faults.

You go to the heart of the matter. If you have evidence that a detainee led enemy troops in battle, had explosives training and was deployed with intent to use that training, and so on, show the evidence. I'm willing to listen to a proposal for some kind of special judicial review of that evidence, but not for the idea that all it takes is the say-so of US military or security personnel and that's it, you're in detention for the rest of your life as an enemy combatant. If the evidence can't stand up to judicial review and some kind of transparent scrutiny, it is not adequate for detaining someone for life without hope of release.

Brett, this has eff-all to do with Ayers. Just let it go.

Wrt the service: isn't that public service in return for free college? OOoooh, scary.

You're trivializing what's really at issue here.

No, I'm just ahead of the curve on you, because I've got no reason to pretend Obama is some warm and fuzzy humanist, rather than a sociopath with a remarkable gift for making speeches.

Yeah, the Bush administration had some nasty tendencies. They mostly directed those tendencies outward.

How confident are you Obama's tendencies in that direction, which are coming clearer every day, will not be directed inward, towards Americans? The guy does not, evidence suggests, take well to people refusing to do as he says.

Brett shared
"This guy scares the pants off me, and I don't scare easily."

You flatter yourself...

"You know, what's to understand? He really was pals with Ayers, it was no smear. "

he was "pals" with a two-bit terrorist from 40 years ago, therefore he wants the power to lock-up two-bit terrorists ?

Hi Hilzoy--I read your blog eagerly and generally with enthusiastic agreement. I'm also someone who's studied and written on human rights issues and who is deeply troubled by preventive detention.

But I don't think that the concept of preventive detention of those who can legitimately be described as prisoners of war is per se illegal or immoral, nor is it as untenable as your posts and some of those that follow it suggest.

For example, a detainee who says, without tainted coercion, that he is a member of al Qaeda and will try to kill Americans if released is the equivalent of a uniformed enemy soldier.

I want to take care not to overstate this position and to recognize some of the more the obvious potential legal and moral problems.

First, how do we determine who exactly falls into the category of a non-prosecutable POW? Is the evidence of this status reliable and untainted by torture, cruel inhuman and degrading conduct, either against the detainee or against any other witnesses?

Second, since there is no markable end to this war, unlike those where we hold uniformed POW's, how long could we hold the al Qaeda POW's?

Third, would this POW status be limited to the hopefully relatively smaller group of detainees who are not prosecutable because of illegal treatment at the hands of the Bush administration? If not, isn't there the risk that this POW classification will be the exception that swallows the rule of requiring legal treatment, interrogation and detention, particularly since its so much easier?

I'd recommend an article written by Prof. Ronald Dworkin (which I can't seem to find), one of the most brilliant liberal legal scholars around, shortly after 9/11, in which he concluded that the struggle against terrorism was a hybrid of military and criminal enforcement and in which he suggested legal structure that combined the two. Part of that structure was detention of combatants with periodic review.

I don't want to say that Prof. Dworkin was or is an advocate of preventive detention, but he did appear to contemplate a system of detention outside of criminal process for a limited class of people that is similar to what has been proposed by the President.

I suspect my view won't have much support here. But I think those of us who care about human rights, the rule of law, and who are supportive of the President's overall recalibration of our security policies need to take seriously the problem presented by the fact that there are lethally threatening detainees who cannot be convicted of a crime.

I think we all wish that this was not true.
But since it is, what do we do about it?

Best,
Charlie

Hilzoy, you've known since February - we all have! - that Obama is in favor of preventive detention: why has it taken you till May to conclude you object to even Obama getting to have people locked up indefinitely without evidence and without trial?

Brett: You supported this stuff and much much worse when Bush did it, so STFU.

"The glow FINALLY coming off?

This guy scares the pants off me, and I don't scare easily."

Hahahahaha! Oh, man. After a crappy week of demoralizing service on my county grand jury, I needed a laugh, and you provided one. For someone who constantly and without basis characterizes complete strangers as "sociopaths," you come across as one of the most paranoid, pants-wetting scaredy cats I've ever encountered on the interwebs.

Agree, Charlie Martel. Thanks for a thoughtful and analytical post. The "preventive detention" that Obama describes seems to apply to people with POW status, not criminal defendant status. With the assistance of judicial oversight (through habeas corpus), it seems to me that the legitimacy of their detention can be tested for constitutionality, such as Hamlily. It seems to me that if the procedures pass muster in the courts, we don't have much to complain about from a Constitutional point of view. Or am I missing something?

I mean, the idea that someone could casually toss of statements about "my buddies in the Michigan Militia" -- one of those paranoid "OMG UN BLACK HELICOPTERZ !!!!1!" conspiracy theory organizations -- then describe himself as "not scaring easily" . . . HAHAHAHAH!

But it's a kinder, gentler preventive detention.

Obama has just officially taken ownership of this particular bit of Bush's legacy.

...need to take seriously the problem presented by the fact that there are lethally threatening detainees who cannot be convicted of a crime.

I suppose that if we take this "problem" seriously, that would make us "Serious People", right? You know, the kind of serious people who have nothing to do with DFH and have no problem whatsoever with starting pointless wars over nothing and ratcheting up every aspect of the national security state without limit.

There are tens of millions of people in the world that are just as, if not more "lethally threatening" as any detainee in Gitmo. Adding a few dozen to tens of millions makes no difference whatsoever. There is no actual problem here for us to take seriously. Instead, we have nothing but the obsessive fixations of bedwetters; we might as well talk seriously about the problem of the giant purple dragons coming to eat us or the angry monkeys that live in our closets. The moral cowardice on display here sickens me.

If you want to call detainees POWs, then try them under the UCMJ and be done with it.

I am pretty sure Obama's prayers upon retiring nightly include a request that a Cat 6 or 7--yeah, I know, Cat 5's the biggest ever--strikes Gitmo this summer and washes the whole thing into the sea.

Under the circumstances--any prosecution would require recourse to evidence improperly obtained--since he can't really summarily execute them (well, he could, but I doubt he's got the stones), it's the best possible solution.

@Sapient:

You may be missing the fact that, just like its predecessor, this administration does not recognize any of the prisoners in its custody in Bagram or Guantanamo as POWs.

There is not yet a complete accounting for the prisoners held in Afghanistan, at the various military and CIA prisons there.

The protections of common article 3 of the Geneva Conventions are not even now being extended to all prisoners at Guantanamo, an issue ObWi commenter CharleyCarp was recently pursuing in court.

These efforts to make the Obama proposal for indefinite detention without trial sound reasonable require an even more incoherent and ad hoc approach than already exists.

It's the very effort to go around our existing system of civilian and military courts that made Guantanamo repugnant, but that's the effect of "reformed" revived military commissions and of this to-be-proposed detention-without-trial.

You go to the heart of the matter. If you have evidence that a detainee led enemy troops in battle, had explosives training and was deployed with intent to use that training, and so on, show the evidence.

None of those activities are crimes, so even if you had evidence, you couldn't prosecute him.

But I don't think that the concept of preventive detention of those who can legitimately be described as prisoners of war is per se illegal or immoral, nor is it as untenable as your posts and some of those that follow it suggest.

If they're legitimately described as POWs, then they are subject to the GC, which only justifies holding them as long as the War in Afghanistan continues. But the war is over: we have overthrown the Taliban and imposed a new government in Afghanistan. People who fought in the war should be repatriated since fighting in a war is not a crime.

The War in Afghanistan is over????????????I'll just leave that for others to deal with, and just, ahem... PRETEND, that there still is a war going on in Afghanistan, as well as Iraq. If so, then the Obama Administration can pretty much just reclassify the detainees as POWS and under law, can hold them till the end of war, however that's determined. Of course, that's kind of "through the Looking Glass", since till now we've been arguing that they AREN'T enemy combatants, and therefore are entitled to Geneva Convention protection.But what the Geneva Conventioin giveth, it also taketh away.If you want combatant status and protection, you also get the "privilege" of being held till war's end-which for Afghanistan, may be a long, long time away.

Of course, the entire POINT for the Bush administration of holding people in Gitmo was to avoid having to classify them as POWs or bring any charges against them, because they wanted to torture them to get "evidence" linking Al Queda and Iraq.

Nell -- Third Geneva Convention, not just common article 3. Huge difference.

(I'm sending you an email).

As I heard the speech, I saw a very non-commital notion of "preventive detention", at best -- mostly, in this part of the speech, Obama was saying two things:

1) There are people in Guantanamo cells who, while they haven't done anything, still pose a threat to Americans lives if released.
2) "I am not going to release individuals who endanger the American people."
3) ... I'm just not sure yet what I will do. Working on it.

Now, I'm not exactly jumping at the prospect of making a new category of incarceration; I certainly more than respect Hilzoy's principled opposition, and a number of her supporters here.

But I also find it comfortable (even if, perhaps, in a silver lining sort of way) that our President doesn't take his country's imminent security lightly.

"There are tens of millions of people in the world that are just as, if not more 'lethally threatening' as any detainee in Gitmo. Adding a few dozen to tens of millions makes no difference whatsoever."

The phrase "suck it up" comes to mind reading this, which, for me, makes Obama's rejection of it a good thing. But then maybe I'm being unfair in reading it.

On the other hand, I also suppose some people are certainly of the opinion that saying "suck it up" constitutes leadership; but I disagree on this as well.

Point: But I also find it comfortable (even if, perhaps, in a silver lining sort of way) that our President doesn't take his country's imminent security lightly.

What worries me is that many well-meaning Americans may take it that way.

I don't find it in the least bit "comfortable" when the leader of the only superpower declares he's in favor of indefinitely detaining anyone who's a "suspect" - and not an American citizen. I find it distinctly uncomfortable - it's the key reason I haven't been to the US since 2004, and the key reason why I plan to book my plane tickets to Montreal later this year via a travel agent so I can be absolutely certain I'm not passing through the US at any point in my journey.

I'm not the kind of person the US needs to worry about, though. I react to the news that extra-judicial imprisonment is still American policy with wary avoidance. I may harm the US tourist industry by a fraction, but I'm sure you'll cope.

The long-term threat to US security from extra-judicial imprisonment of suspects is just the same under Obama as it was under Bush: the US is fomenting anti-American terrorism.

Christ, I'm getting awfully tired of this concept of "American lives" being used to justify bombing the cr@p out of people, suspending our most cherished legal principles and generally behaving as if there was nothing more important in the world. If you really want to save American lives, ban cars and fast food.

This guy scares the pants off me, and I don't scare easily.

Because continuing to detain a subset of the people Bush and Cheney had been detaining makes him worse than they were. And designing a system for detention that involves the judiciary makes him more of a dictator than the two who claimed the power to detain people by executive fiat.

No surprise; this is the same logic that makes having been briefed about the torture regime worse than designing and implementing it. (I flatter the GOP, of course; their logic is that having been briefed about the torture regime is a terrible thing even though there was no torture.)

"You go to the heart of the matter. If you have evidence that a detainee led enemy troops in battle, had explosives training and was deployed with intent to use that training, and so on, show the evidence.

None of those activities are crimes, so even if you had evidence, you couldn't prosecute him."

Those are inchoate crimes, FWIW.

It seemed to me (based on other parts of the speech where he specifically mentioned hearsay rules) that what they're looking at are terrorism-related standard rules of evidence and prosecution, like hearsay exceptions or inchoate offenses.

That, after all, is the entire point of creating a rule-of-law structure here, which seems to be Obama's goal; if the structure that they create is too harsh or unjust, then at least it can be criticized on those terms. That's miles away from a Bush-style seat-of-your-pants system that provides no real justice or accountability b/c we don't even know what's happening (and they don't care).

It's a hard sell after all we've been through, but it's important to keep that distinction in mind. The legitimacy of a rule of law doesn't turn solely on whether the law is harsh or soft, over- or under-deterrent, too specific or too prophylactic: the question is whether there is a predictable, definable, fairly- and equally-applied rule for everyone.

My hats to Adam for the best post on this thread, and getting to the heart of this.

hilzoy, it seems to me that you're buying into the Cheney framing of the debate: it is not a given that we can only prosecute terrorism via extralegal means and are therefore faced with a choice between legality and effectiveness.

"Preventive detention" is not a per se illegal concept -- on the contrary -- technically, bail bonds are preventive detention. The question is what sort of accountability, evidence, and investigation are set up around these structures. Obama -- as far as I've heard -- has talked exclusively about making procedural, not substantive, changes to terrorism enforcement.

ditto Point. well put, Adam.

Mr. Martel has a point, reluctant tho I am to admit it.

Another possibility is that we have intel which reaches, say, the clear-and-convincing standard, but which does not suffice for guilt beyond a reasonable doubt, that someone in our custody is a terrorist.

I think it's fair to have a debate about this, and to have Congress approve any such preventive-detention regime. I would not approve unilateral executive action by Obama.

And no such regime should be permissible for U.S. citizens.

Adam:the question is whether there is a predictable, definable, fairly- and equally-applied rule for everyone.

And the answer is, so long as Obama plans to continue to detain any of the extra-judicial prisoners from the Bush regime:

No, there is not.

There is no way to make the continued imprisonment of these people legitimate. There are various ways in which continuing to detain them can be justified - Bush and Cheney ran through a stack of them, Obama declares an intention to start his own stack of justifications - but there's no way to turn back time and make it all legal from the very beginning.

I find it distinctly uncomfortable - it's the key reason I haven't been to the US since 2004

Um, don't you live in the UK? Like, this place? And the thought of visiting the US makes you "uncomfortable"?

In related news:

WASHINGTON—In its first major hearing on the use of abusive interrogation tactics at Guantánamo Bay, a blue-ribbon panel found detainee Omar Khadr mentally unfit to testify about his years of psychological torture. "Because of Mr. Khadr's fragile state due to unknown hours spent under the most brutal, mentally straining conditions, he cannot be trusted to speak competently on his own behalf," said Rep. Kit Bond (R-MO), the panel's chairman. "It is unfortunate that someone with such intimate knowledge of the horrors of waterboarding, stress positions, and induced hypothermia is so emotionally unstable. He bursts into tears at even the mention of mock torture." Bond added that Khadr's confession of planning 9/11, the London train bombings, and the Iranian hostage crisis would be kept on the record.

This is a little too close to being the real news to be as funny as it otherwise deserves.

Jesurgislac, with all due respect:

1) I'm pretty sure Obama's fifth category of Guantanamo detainee is a lot more specific than "suspect";

2) I'm fairly certain you will not fit that category;

3) as I heard it, the President made a strong point that those in these categories would NOT be under "extra-judicial imprisonment";

4) "The long-term threat to US security from extra-judicial imprisonment of suspects is just the same under Obama as it was under Bush"

Doesn't the quality of detention have a LOT more to do with violent anti-american sentiment than the quantity -- IOW (and, really, with all due respect) with regard to their effects on terrorist recruitme, could you be confusing indefinate detention with torture?

On a political level, don't forget the Willie Horton effect. If a single prisoner now in custody is released, then gains notoriety for any act against America or an American, it suddenly becomes easy again for the Cheney's to promote fear.

I think Obama is smart enough to realize both the morally gray and ultimately futile concept of the GWOT, and the fact that reconstructing America's perception of itself won't happen overnight.

I think it should be obvious that indefinite "preventative detention" is the sure sign of a totalitarian state, but for those who've suddenly fallen in love with the concept Greenwald summarizes the major points aganist it here.

What baffles me here is the assertion that this is a "unique" problem.

This is not a unique problem. People you wish to imprison because they have sworn loyalty to a cause you dislike, or said they hate your country, or wish to bring down your government, but who have committed no actual crime you can prosecute them for, are called "political prisoners." Many, many regimes (most of them authoritarian) have faced the problem of creating a legal framework to imprison such people.

I suggest we look to the Soviet Union for precedent- we seem to be getting most of our interrogation strategies from them anyway. Article 58 of the old Soviet penal code provides quite a comprehensive structure for imprisoning people for things they think rather than things they've done.

Alternately, we could just take another hint from the Soviet penal code and start admitting confessions obtained through torture as evidence. Then we can make sure all of our prisoners are found guilty of some act of terrorism. Since we're planning to imprison these people indefinitely anyway for reasons they can't challenge in court, we may as well find a way to slot them into the existing criminal justice system.

Nell,

My point was that Obama seems dedicated to the idea of creating a system that would withstand judicial scrutiny. If the situation is such that people like CharleyCarp can fully litigate matters in court (and perhaps prevail) that's what it's all about. Due process doesn't necessarily mean that everyone agrees with the outcome.

"He's simply choosing not to lead on this issue. Or, more accurately, he wants the pretty words to be considered leadership, while he caters to the most ignorant, stupidly fearful streak in the society."

Thank you, Nell, for stating, strongly, what I was arguing, seemingly without success, in yesterday's Dick Cheney thread.

"But it's a kinder, gentler preventive detention.

"Obama has just officially taken ownership of this particular bit of Bush's legacy."

Another "what russell said" -- in this case, sadly so.

I just posted this in the Cheney thread from yesterday. Perhaps Getting to Know Obama will provide some insight into our President and the current goings-on.

clean-up needed in aisle 1.

I think it should be obvious that indefinite "preventative detention" is the sure sign of a totalitarian state, but for those who've suddenly fallen in love with the concept Greenwald summarizes the major points aganist it here.

Greenwald is undermining his own case: He draws the clear parallel to the "other countries" Obama references as grappling with the issue of "preventive detention" (a term Obama never actually used).

Every one of those other countries was considering extended detention terms from 14-90 days as a window for evaluating evidence against terrorists. If that's what Obama was referring to (and it's clear that he was), that is a far cry from "indefinite" detention, which also isn't mentioned (or really even implied) in the speech.

Again, Obama seems to be talking about something entirely different from Cheney -- but Cheney's methods are being interpolated into Obama's policies for some reason. A preventive policy (again, like inchoate crimes, bond releases, and many other standard aspects of our criminal justice system) is not by nature "indefinite" nor "perpetual"; the Cheney policy was perpetual because it was an unaccountable legal black hole, not because it was "preventive." So far, Obama's explicitly disavowed all of the conditions that allowed that detention policy to persist.

I agree that Adam at 10:33 makes good points.

What distinguishes a legal from an extra-legal system of justice is the degree to which it is arbitrary and subject to the whims and prejudices of the people who are operating it. The major benefit of a system of "laws not men" is that is does not depend on consistently and repeatedly finding good people to run it, that it isn't a catastrophe when scoundrels or (god-forbid) sociopaths get into the seats of power.

So I will keep an open mind about what Obama proposes going forward, but one very important criterion has to be, what could be done with this system if Dick Cheney (or somebody worse) were calling the shots. And in that respect I am on the one hand deeply skeptical that Obama and his advisors can craft anything which will stand up to scrutiny, but on the other hand it has to be admitted that our existing system of pre-911 law has already failed that test.

This last point is important, because at a certain level procedural structure can only go so far in protecting us, without being grounded in the political and cultural realities of the underlying society. A "nation of laws not men", if it is to actually work in practice, is not a statement about mere procedural structure but rather is a political statement about our culture and the attitudes which we take towards the arbitrary exercise of power. Obama's biggest fault here is in not providing better and stronger leadership to a population who need to be weaned off of their irrational fears. IMHO this is one place where his temprement of caution and incrementalism are not helping.

So if we are to get much closer to that ideal state of "laws, not men", it will have to be done from the ground up, educating and persuading ordinary people, in combination with what is done from the top down by the President, Congress and the courts. Otherwise even the best system of legal protections will be like a tall and formidable castle wall which poses little barrier to the barbarians because nobody is willing to defend it.

Ben Franklin had it right when he said "A republic, if you can keep it". Our leaders can't keep our republic or our legal system for us. We have to do that for ourselves. Il faut cultiver notre jardin.

"If we don't have enough evidence to charge someone with a crime, we don't have enough evidence to hold them. Period."

And yet we kept how many enemy combatants on U.S. soil in WWII? Several hundred thousand, I think. And we held them not knowing at the time how long they would be in custody. Preventive detention. Didn't want them to fight again.

"I don't find it in the least bit "comfortable" when the leader of the only superpower declares he's in favor of indefinitely detaining anyone who's a "suspect" - and not an American citizen."

But he didn't say that. He said people who "pose a threat," "expressed their allegiance to bin Laden," or "made it clear they want to kill Americans." He uses these criteria to determine who is at war with America.

"Those are inchoate crimes, FWIW."

I guess you could say they are overt acts in furtherance of a conspiracy if you want to go the criminal route.

That's the problem at the foundation of this debate. We have a different situation here: non-national groups fighting against a country. From a policy perspective, using the criminal prosecution route makes sense in some instances, mainly because the combatants aren't wearing uniforms and the organization they belong to never signed the G.C. However, their coordinated efforts resemble that of a nation at war.

IMO, Hilzoy's approach of "if you can't prove a crime you can't lock them up" is incredibly naive. It will absolutely fail to protect the United States. It may be one thing to demand full G.C. POW status but it is entirely another to insist that our treatment of Al Queda be confined to domestic criminal law.

Charlie Martel makes some good points. So does Adam.

I don't have a problem from a policy perspective of having a hearing or review at some point since there will likely be no definitive end to this war. That is what is happening for some and what Obama is proposing for those that cannot be tried under the existing standards for whatever reason but are too dangerous to release.

Too many of the criticisms of Bush and now Obama seem to ignore the fact that this is not a domestic problem.

Excellent comment, TLT.

Otherwise even the best system of legal protections will be like a tall and formidable castle wall which poses little barrier to the barbarians because nobody is willing to defend it.

(Or because the barbarians are in an undisclosed location in the fortress, running the show.)

Every one of those other countries was considering extended detention terms from 14-90 days as a window for evaluating evidence against terrorists. If that's what Obama was referring to (and it's clear that he was), that is a far cry from "indefinite" detention, which also isn't mentioned (or really even implied) in the speech.

Eh? From what I've read it sounds a lot more like indefinite detention that something limited to, say, 90 days. If we're talking about people for whom we lack the evidence to convict in court but that are too dangerous to release, than holding them for 90 days doesn't change the fundamental dynamic: you still have to release them after 90 days and they're still too much of a "threat". Haven't all of the gitmo detainees been in custody for over 90 days anyway?

"I think it should be obvious that indefinite 'preventative detention' is the sure sign of a totalitarian state . . ."

Didn't Tom Cruise star in this movie?

We are still at war in both Iraq and Afghanistan, no matter how much some people might like to pretend it's all but over. Adam, bc, and Charlie Martel have expressed my feelings on this matter.

Holding confessed al'Qaeda members for as long as we are at war is perfectly justifiable, by any reasonable standard. They should be treated more or less as POWs, and certainly should not be subject to torture. But we have every right to hold them as long as they are at war with us.

I would even suggest two separate categories - native-born Iraqis or Afghans captured in their home countries should be kept separate from foreign-born prisoners. The Geneva Conventions recognize the right of resistance to foreign occupiers, but they most certainly do not recognize the right of a citizen of a third country to travel to the occupied country to fight. In the 19th century, that kind of behavior was called filibustering and was subject to summary execution. We are more civilized nowadays, I guess.

"We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified."

It's called "the federal court system."

It's that in theory, at any rate.

Minority Report.

Gary Farber, I think it's important to quote the entire paragraph in order to put "those who fall into this category" into context:

"As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified."

I read this to mean that they're working on giving these people POW status and treating them lawfully as POW's. The fact that the war against al Qaida seems indefinite means that periodic review is necessary. Is there really anything wrong with that?

Eh? From what I've read it sounds a lot more like indefinite detention that something limited to, say, 90 days.

That's based on the characterization of some human rights attorneys who heard an advance version of the speech -- it's in that NYT article hilzoy linked to.

Obama's speech explains the problem as one that other countries have grappled with -- as Greenwald explains, that seems to be a reference to the UK, which briefly considered extended detention for terrorist suspects.

If anyone else can find a non-secondhand reference to "indefinite" claim, that would be wonderful. Obama's speech seems to clearly disavow that position.

I question the notion that we are or ever were at war with Afghanistan or Iraq; bc makes the relevant point: our system is ill-equipped to deal with international crimes, particularly criminal matters. (A "federal court system" is, by definition, not well-equipped; hence the term "federal.")

It's becoming increasingly clear that we're (meaning any nation) just not very good at operating on this scale: piracy (intellectual or otherwise), terrorism, organized crime, antitrust, financial regulation... we're really bad at it. Our system is geared toward domestic (perhaps nation-state-based) enforcement.

I suspect that the endgame here is a more accountable international court -- unfortunately, the Bush Admin's torpedoing of the ICC has made it a largely defunct institution and there's really no good alternative. As a general matter, supranational enforcement doesn't work very well, but there may be an exception for crimes that are inherently anti-national, like international piracy and terrorism.

It's worse than that. "Tainted evidence" likely means "evidence obtained through or in connection with torture." So at least some of these preventive detainees are being deprived of due process because we tortured them. That's our solution to the procedural and moral dilemma.

I think Charlie Martel comes closest to my point of view. This is a balancing act, and I think Obama's efforts are thoughtful and fair.

The protections we afford the accused in the United States are not absolute. They evolved over decades to balance the competing interests of personal rights and protecting the populace. We can't transfer these rights wily-nily to foreign detainees because the circumstances are completely different: we don't have the full capacity to gather evidence in the battlefield, or in territories where we have no jurisdiction; we can't count on witnesses being available for testimony; we have intelligence assets to protect; and the nature of the threat is simply different than a common criminal.

This is a different sort of problem, and we need to come up with new balance between the competing interests. HIlzoy writes:

"If it is not a crime, why on earth not make it one?"

After the commission?

The fact that the war against al Qaida seems indefinite means that periodic review is necessary. Is there really anything wrong with that?

There is no war against AQ; AQ is not a state.

Let's stop playing games here: no matter what AQ does, the "war" can be said to continue. Even if Osama bin Ladin goes on TV and apologizes before turning himself in to the US Embassy, there will always be some person somewhere who can claim "I am AQ and I will continue the fight!" The conflict cannot end. States can capitulate but decentralized franchise operations cannot.

I mean really now: what do you think that periodic review will consist of? Will a commission review the admissions made under torture against the detainee? Or will it review the rumor and heresay against him that would never be allowed in a civilian court or under the UCMJ? None of that is going to change, so if it was good enough to keep the detainee in preventative detention to start with, it will still be good enough to keep him in detention indefinitely. Right? The only thing that can change is whether the detainee says he's part of AQ...but if a detainee changes his tune in that regard, we're not going to believe him, so even that doesn't matter.

Freedom is not always easy, and it is not always safe. Neither is doing the right thing. Nonetheless, we ought to be willing to try. I wish I saw the slightest reason to believe that we are.

Bwa...hahahahahahahahahaha! Coming from a lesser-evil pwoggie-bloggie partisan hack pundit-wannbe, that's fucking rich! Oh, is doing the right thing hard? Really?

And just how the fuck would you know?

Declaring a permanent and open-ended state of war is also a sure sign of a totalitarian state.

Normally, I try to argue my points, but in this case I'm so flabbergasted by the willingness to throw fundamental legal principles overboard that I just won't bother.

Thanks hilzoy et al for taking a stand.

Kevin Drum on Hilzoy's post:

This is a case where, unfortunately, I think outrage is too cheap and too easy.

Concur.

Not that Drum has anything on the acuity of Christian [sic] Weston Chandler's cogent analysis.

Fiction: "The fact that the war against al Qaida seems indefinite means that periodic review is necessary. Is there really anything wrong with that?"

Truth: "There is no war against AQ; AQ is not a state."

Except, Turb, there is the war on terror -- or whatever it is President Obama wants us to call it.

Take a chill pill, Smithee.

1) I'm pretty sure Obama's fifth category of Guantanamo detainee is a lot more specific than "suspect";

2) I'm fairly certain you will not fit that category;

I'm fairly certain that I don't, too, for the following compelling reasons:

(a) I'm white; (b) I'm not a Muslim; (c) I've never visited any Middle Eastern or predominantly Islamic country; (d) My given name and my surname are both very British-origin; (e) I have a British passport; (f) I'm white and I'm not a Muslim. While any one of these might not save me, that all six apply mean that I am unlikely to be in any actual danger as I pass through US Immigration and Customs - just harassed, bullied, my luggage searched, a copy taken of all the data on my laptop, and treated like a criminal suspect because I'm entering the US.

No, no. I'll go to Canada via a more civilised country, if I can't get a direct flight.

Except, Turb, there is the war on terror -- or whatever it is President Obama wants us to call it.

No, the whole concept makes no sense. Even if Obama insists that there is a war on terror, that doesn't make it true. The term war carries with it legal powers and obligations; it has an actual meaning, and conflict with non-state actors isn't it.

Take a chill pill, Smithee.

Take a chill pill, Smithee.

What does that even mean? Who the hell is Smithee? You know btfb, you can't expect us to understand this inside baseball stuff....

He was referring to Alan Smithee's unhinged comment at 12:23 PM, not to you.

Kevin Drum ...

"I appreciate the outrage, but this is a genuinely knotty problem."

Hilzoy is saying it is not a complicated problem? Taking something off (preventive detention per se) the table does not mean the solution is not a complicated problem.

"For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding."

Is Hilzoy denying this?

"At the same time, they aren't American citizens."

Basic rights still apply. Likewise, there are something like 20 million people residing on U.S soil that are not citizens either.

"They were captured on a foreign battlefield, not U.S. soil."

This means the world, under the new rules, rules that Obama nominees agreed apply when Sen. Lindsey Graham brought up the point. Kevin Drum misleads here.

"They are, essentially if not legally, prisoners of war in a war with no end. So what do we do?"

One problem is that Obama's category has a catchall that is so wide that it is meaningless.

For instance, he cites Taliban leaders. A claim can be made that there is still some credible sort of "war" going on around Afghanistan. So, holding this sort of person for the time being is one thing.

Then, those are some who are quite in some fashion roughly "enemy combatant" sorts involved in some sort of war-like act, including an insurgent. We can again stretch "war" and "POW" (do they have the rights of one?), perhaps, to apply.

Others are involved in some unlawful combatant act. The terms so broad (for good or ill) it is unclear (except for tortured tainted testimony or vague evidence) why they cannot be prosecuted. The "American Taliban" is an example (victim?) of the breadth of this group.

Finally, there is some catchall "dangerous" sort, including those who pledge allegiance to certain groups. Someone up thread noted Obama's category is not likely to include us. Yes, we are unlikely to be picked up let's say in Bosnia or Pakistan.

But, there are literally thousands all over the place who might be in this category. Obama basically supports the power to selectively pick some, based on arbitrary reasons, and keep them indefinitely.

Simply put, process is not 'due' simply because it is authorized. It can be better, much better, but Hilzoy's "outrage" (silly unserious soul!) remains correct.

I consider myself a pretty strong civil libertarian, and I don't see a big problem with setting up a system to detain foreign enemies.

I am not persuaded by this "conviction or release" argument in this situation, because it is an assertion that ignores both historical and legal reality.

As far as I know, the Constitution has always allowed the executive to detain foreign combatants who are engaged in war on the US -- POWs. And whether, where, and how long to detain POWs has always been the exclusive province of the executive and legislative branches, not the judicial branch.

While there are major differences between the current situation and a typical war, I think there are enough similarities that the power to detain POWs for the duration of a conflict can and should be applied to some of the al-Qaeda captives.

So I see no problem in created a quasi-POW status for those who have been making quasi-war on the US and would continue to make quasi-war on the US if allowed to be free.

Because this is based on the POW model, it would only apply to foreigners captured in foreign lands. But given the potential for abuse by an unchecked executive/military, I would grant additional legal protections to the detainees. So unlike the traditional POW model, I would require court review of each detention, periodically, both to ensure that the detainee is actually a threat, and to confirm that the "conflict" is still going on.

Oops! Thanks for the clarification, CharleyCarp. Should wait for the second cup of coffee to post...

"There is no war against AQ; AQ is not a state."

Uh, the Clauswitzian definition of war as an action of nation states and Princes is fast becoming obsolete. Go read up on Van Creweldt, and the evolution of war and stateless actors.

ThirdGroucho, thanks for explaining.

Because this is based on the POW model, it would only apply to foreigners captured in foreign lands. But given the potential for abuse by an unchecked executive/military, I would grant additional legal protections to the detainees. So unlike the traditional POW model, I would require court review of each detention, periodically, both to ensure that the detainee is actually a threat, and to confirm that the "conflict" is still going on.

Saying you want additional court review doesn't mean anything: you can easily arrange for the courts to rubber stamp indefinite detention. I mean, releasing people is always going to have higher political risks than keeping them imprisoned so the executive will always be pushing for continued detention. And as I explained above, no matter what AQ does, we will always be able to say that our conflict with them continues. And why do you think these prisoners will ever become less of a threat?

Uh, the Clauswitzian definition of war as an action of nation states and Princes is fast becoming obsolete. Go read up on Van Creweldt, and the evolution of war and stateless actors.

Do you mean that simply because Van Creweldt wrote a book, American and international laws magically changed? That must be some book!

In an ideal world, Obama would present the following options to Congress as potential places to relocate detainees:
1. Federal supermax prisons.
2. The Hague.
3. Dick Cheney's house.

"only apply to foreigners captured in foreign lands"

Hmm ... how about a Japanese airman captured after bombing a military target on our soil in the middle of WWII?

Anyway, as "PS" to my comments, Justice Jackson's dissent in Korematsu comes to mind. Do we wish to "place in law under the Constitution" such rules, rules that will be applied by future Presidents too?

Normalizing this sort of thing is not without its costs.

Saying you want additional court review doesn't mean anything: you can easily arrange for the courts to rubber stamp indefinite detention. I mean, releasing people is always going to have higher political risks than keeping them imprisoned so the executive will always be pushing for continued detention. And as I explained above, no matter what AQ does, we will always be able to say that our conflict with them continues. And why do you think these prisoners will ever become less of a threat?

If court review isn't worth anything, why the big uproar over the Bush Administration's attempts denial of habeas corpus relief to detainees like Padilla? Courts have already ordered detainees to be released or charged, and courts have freed people accused by the government of crimes.

Anyway, the "convict or release" argument has it backward, because it inaccurately assumes that the proper analogy is domestic criminal law. I think the proper analogy is international conflict, so the default presumption would be "the executive gets to keep whoever he wants for as long as he wants." This historical legal power doesn't go away just because liberals like us don't like it. And because I'm not okay with such expansive power for the executive, I think court review is the best

Some of the issues here arise because we appear to be talking about two different things, there's no concrete proposal yet, and all we have to go on is Obama's speech.

The two different things are: people taken prisoner by U.S. personnel in the future, and men now in Guantanamo whose conviction is unlikely due to evidence against them being tainted by torture.

Adam: The legitimacy of a rule of law doesn't turn solely on whether the law is harsh or soft, over- or under-deterrent, too specific or too prophylactic: the question is whether there is a predictable, definable, fairly- and equally-applied rule for everyone.

Anderson: no such regime should be permissible for U.S. citizens.

Can't help but hear a real element of "Do it to Julia!" about that...

Is anyone here with the keys to the kitten?

Aside from the obvious cleanup needed, I can attest from experience elsewhere that AlanSmithee is never going to produce a single comment worth reading or responding to, in any of his sockpuppet outfits. Please do not feed.

"For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding."

Yes, we all know this. The problem is with the "impossible to convict" part.

The only reason a guy like, frex, Khalid Sheik Mohamed would be "impossible to convict" is because our program of detention and torture has made any evidence we have against him inadmissible.

Absent that, I don't see why we need special new categories of prisoner.

Someone takes up arms against you. You capture them. If they meet the standard of GC III Article 4 they're a prisoner of war. If not, they're a civilian. The decision of whether they are or not is to be made by a "competent tribunal", which is almost certainly not equivalent to "the President".

If they do not qualify for POW status they are entitled to humane treatment, and they are subject to the domestic law of the state that holds them.

That's my understanding of the relevant international law. If I'm missing something, by all means fill me in.

We have tried, convicted, and currently hold Omar Abdel Rahman, Richard Reid, Zacharias Moussauoi, all militant Islamic terrorists. Sensitive information was involved in Rahman's trial if not the others, and the trial proceeded successfully in spite of that.

There is nothing lacking in the criminal justice system that would prevent us from trying, convicting, and punishing any of these guys under plain old domestic law.

KSM and folks like him should be a freaking layup.

The only problem is the "impossible to convict" part. He's impossible to convict because we've corrupted any piece of information we might use to convict him.

So, we have to make up some weird, novel, bullsh*t category of prisoner.

This thread unfortunately instantiates one of Glenn Greenwald's fears about the effects of the Obama adminstration's policies:

[N]ow, we're going to have huge numbers of people who spent the last eight years vehemently opposing such ideas running around arguing that we're waging a War against Terrorism, a "War President" must have the power to indefinitely lock people away who allegedly pose a "threat to Americans" but haven't violated any laws, our normal court system can't be trusted to decide who is guilty, Terrorists don't deserve the same rights as Americans, the primary obligation of the President is to "keep us safe," and -- most of all -- anyone who objects to or disagrees with any of that is a leftist purist ideologue who doesn't really care about national security. In other words, 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."

All those "progressives" in this thread arguing for "moderate" policies that make a supposed compromise between the rule of law and authoritarianism are great examples of the phenomenon that Greenwald is writing about.

Incidentally, what we're discussing is not a system to detain foreign enemies. It's a system to detain people accused by the president of being foreign enemies...though of course who could possibly imagine a situation in which a president would make such an accusation in bad faith?

Though our so-called conservatives may be more committed to undoing our civil liberties, it may prove to be the Nixon-to-China-ing of our so-called progressives who put the final nail in their coffin.

I'm not going to pretend I know how meaningful this is, because I don't know. TPM has David Axelrod on video refusing to say that Obama does not retain the power to torture.

As usual, we are expected to trust and unable to verify. Not good.

All those "progressives" in this thread arguing for "moderate" policies that make a supposed compromise between the rule of law and authoritarianism are great examples of the phenomenon that Greenwald is writing about.

Yes, that is exactly what all the "progressives" in this thread are advocating -- indefinite detention without recourse. Precisely.

How is accusing people of accidentally supporting authoritarianism not an insult to their intelligence? And you're really audacious enough to pass judgment on what constitutes "bad faith"? That's absurd.

The only reason a guy like, frex, Khalid Sheik Mohamed would be "impossible to convict" is because our program of detention and torture has made any evidence we have against him inadmissible.

This is who I immediately thought of when I heard the part of the speech in question. What do we do with those like KSM, where there seems to be some evidence that he committed a crime, but any trial would be compromised by the torture used against him?

This speech was given in the context of closing Gitmo -- much of it had to do with the prisoners there. However, Obama wants to set up a set of rules within the legal framework, for trying POWs, "enemy combatants", whatever you want to call them. It's this set of rules that he wants to pass to future presidents.

At least, that's how I heard the speech.

[[jesu, why do you continue to set yourself up for an out-of-the-posting-rules reply?]]

"The Geneva Conventions recognize the right of resistance to foreign occupiers, but they most certainly do not recognize the right of a citizen of a third country to travel to the occupied country to fight. In the 19th century, that kind of behavior was called filibustering and was subject to summary execution."

So, you're saying that all the Americans, and other foreigners, who fought in China prior to November, 1941, should have been executed? Ditto the members of the Abraham Lincoln Brigade, and all the other foreign fighters in the Spanish Civil War? Ditto the Poles who dropped into Holland in Operation Market-Garden? Ditto the Free French who fought outside French territory?

Or what?

TP wrote:

"One possibility: he declares HIMSELF to be our enemy, bent on our destruction. He does not confess to having DONE anything yet, mind you -- not even conspired with or "materially supported" people who have. And we cannot PROVE he has committed those crimes, either. He is merely a self-declared "enemy combatant" and proud of it. If such a person can be imagined, would he not be in essence a POW? There's no moral dilemma about holding POWs, is there?"

The problem here is what is defined as being our 'enemy.' If someone is a radical leftist against capitalism, pax americana, or the social organization of society in general right now - should he/she be considered an 'enemy'? Maybe thats not what you mean, but certainly (as we have seen) that is how most security apparatuses have been treating almost all forms of serious mass mobilizations that threaten to disrupt 'normalcy' in any meaningful way. I think its impossible to label someone an 'enemy' and treat them like a POW, especially when terrorism is a mode of behaviour (an action) as opposed to a mode of being (there is no large scale war going on right now between america and 'terrorists' - except in the ideological imaginary of the msm...so I don't see how you can apply the same rules as you would to POW's).

"I question the notion that we are or ever were at war with Afghanistan or Iraq"

What was it we were doing when we invaded those countries and overthrew their governments by military force, then?

"I suspect that the endgame here is a more accountable international court -- unfortunately, the Bush Admin's torpedoing of the ICC has made it a largely defunct institution"

Really?

"So I see no problem in created a quasi-POW status for those who have been making quasi-war on the US and would continue to make quasi-war on the US if allowed to be free."

What criteria do we use to determine who does and who does not belong in this category?

"Because this is based on the POW model, it would only apply to foreigners captured in foreign lands."

All foreigners in all foreign lands? So the U.S. would have the right to pick up anyone in the world who is not a U.S. citizen, in any country that is not the U.S.?

Because that seems kinda sweeping. Not to mention that the rest of the world might look askance. Is this a general right we should extend to all other countries of the world, or is this just one of those American exceptionalism things?

"I would require court review of each detention, periodically, both to ensure that the detainee is actually a threat, and to confirm that the 'conflict' is still going on."

What standards would the court use? What rights would the defendants have? None? Any? Or what? What would be the criteria used to determine who is "actually a threat"? Is this a status that could change? If so, how?

I'm seriously trying to understand what people are proposing here as alternatives to existing law.

"TPM has David Axelrod on video refusing to say that Obama does not retain the power to torture."

Axelrod says that Obama has signed an executive order banning torture, which is true. I'm unclear what are the magic words Axelrod didn't say that he was supposed to say: could you clarify, please? Thanks.

I deleted all the "Jones" comments. If he resurfaces and does the same thing again, we'll ban permanently

Yes, that is exactly what all the "progressives" in this thread are advocating -- indefinite detention without recourse. Precisely.

How is accusing people of accidentally supporting authoritarianism not an insult to their intelligence?

I am certainly not saying that all the self-described progressives on this list are advocating for a system that allows for indefinite detention without recourse. Many are standing with hilzoy against this.

However, some are arguing for such a system.

Adam wrote the following (emphasis in the original) upthread:

That, after all, is the entire point of creating a rule-of-law structure here, which seems to be Obama's goal; if the structure that they create is too harsh or unjust, then at least it can be criticized on those terms. That's miles away from a Bush-style seat-of-your-pants system that provides no real justice or accountability b/c we don't even know what's happening (and they don't care).

It's a hard sell after all we've been through, but it's important to keep that distinction in mind. The legitimacy of a rule of law doesn't turn solely on whether the law is harsh or soft, over- or under-deterrent, too specific or too prophylactic: the question is whether there is a predictable, definable, fairly- and equally-applied rule for everyone.

I don't see how that conception of legal legitimacy is incompatible with a system of indefinite detention without recourse.

Among of the most dangerous misunderstandings of the last eight years is the suggestion that the chief fault of the Bush administration was its incompetence. It certainly was incompetent. But the last thing we need is more competently run illegal, unnecessary wars of choice or more competently managed systems of torture or indefinite detention (and just to be clear, Adam, what you've written only seems to me to allow for the last of these things, though I suppose one might be able to have Dershowitz's "torture warrants" as part of such a sytem, too).

Incidentally, what we're discussing is not a system to detain foreign enemies. It's a system to detain people accused by the president of being foreign enemies...though of course who could possibly imagine a situation in which a president would make such an accusation in bad faith?

No, that's the difference between a proposal that requires court review and what the Bush Administration was doing. The Bush Administration claimed that if they accused and decided, the detainee had no right to seek court review, even if the detainee was an American citizen and even if he was captured in the US. Maybe I'm wrong, but I do not believe Obama has claimed this power. From what I can tell, under an Obama proposal the goverment would be able to accuse, but they still would have to prove that the legal standards for detention are met.

Gary, I don't know the exact details of what standards a court would use, or how "POW" would be defined, or exactly what rights a defendant would have. But it wouldn't be too hard to come up with reasonable answers to those questions. And as long as there are any standards, and the defendant has any rights, this is an improvement over the situation POWs have historically faced.

Are you suggesting that the government does not have a legitimate right to capture and detain POWs? Or that this right does not extend to non-uniformed members of a non-state entity like al-Qaeda? Or that the government has this right but should refrain from using it?

"What standards would the court use? What rights would the defendants have? None? Any? Or what? What would be the criteria used to determine who is "actually a threat"? Is this a status that could change? If so, how?"

My impression from the speech -- they don't know yet, but they're planning to work out the details with Congress.

What was it we were doing when we invaded those countries and overthrew their governments by military force, then?

I think a more appropriate question would be: what have we been doing since the two months it took to overthrow those "governments"? Would you call that "war"? "occupation"?

Gary, your usual commitment to precision makes me doubt that you'd really defend the previous Administration's claims that the various groups in Iraq and Afghanistan are/were contiguous with their previous governments. Even if that was the case, saying that we were "at war" with those governments is clearly inaccurate. The term "war" may be over- or under-inclusive, but the point is that it's obviously inadequate.

Really?

Yes. The ICC lacks the credibility and operational capacity to do what we need it to do. The treaty structure itself is not horrible, but withdrawing from the treaty kneecapped the Court a long time ago. Joining now would be seen as a token gesture, and it would have to be rebuilt from the ground up anyway.

I'm seriously trying to understand what people are proposing here as alternatives to existing law.

The ICC is actually a good place to start, but the Convention could stand to be updated; the last nine years have yielded some hard-won experience that could inform the substance of a new international court. International terrorism is by definition a supranational problem that needs an appropriately-scaled solution. A Court that was sufficiently robust that we could send terrorist suspects there is a difficult though not unrealistic possibility. It beats Gitmo and solves a lot of the NIMBY and credibility problems to boot.

I wasn't entirely joking earlier -- if the Obama Administration really wanted to hold Congress' feet to the fire, they would threaten to send the Gitmo detainees to the Hague and let the ICC deal with them; if Congress doesn't like that, they can help come up with a better solution, but if Gitmo's off the table they should contribute rather than stonewall.

Who is it, exactly, that it is "impossible" to try in the US criminal justice system?

Why is it "impossible" to try them there?

@Gary Farber: Look, I know I don't know. But Axelrod refuses to say that Obama has declared the executive ordering torture is off limits -- contrary to enforceable law. All he'll say is that Obama has issued an executive order against it. Can he issue an executive order to allow it?

Now I suppose Obama may be doing this because he doesn't want to be obligated to prosecute so he can't very well announce that he thinks the conduct of predecessors was illegal. But many of us would be somewhat encouraged if he'd state that he thinks there are legal limits to the power of a president.

I don't see how that conception of legal legitimacy is incompatible with a system of indefinite detention without recourse.

If detention is "indefinite" then presumably it's not "definable," which is the word I used. I would think it's also not "predictable."

I also imagine that "without recourse" is not compatible with a system that is open to criticism, but if that was unclear, consider it clarified.

Regardless, I'm not sure how that squares with your assertion that falling into Obama's horrible horrible close-Gitmo trap is "Nixon-to-China-ism" (nor do I even know what the means; bucking your party's orthodoxy? choosing diplomacy over militarism? All Comparisons To Nixon Are Bad?) -- like your "phenomenon" or "may lead to" constructions, it strikes me as a smear tactic, but you can characterize it as you wish.

"I deleted all the "Jones" comments."

thanks, publius. he was really stinking up the place.

" If he resurfaces and does the same thing again, we'll ban permanently."

really? he defaced, what, four or five threads with multiple pørn-links, and you still want to wait for more? what's the wait for?

what's the wait for

Largely b/c I couldn't find the ban permanently button. :)

So, you're saying that all the Americans, and other foreigners, who fought in China prior to November, 1941, should have been executed? Ditto the members of the Abraham Lincoln Brigade, and all the other foreign fighters in the Spanish Civil War? Ditto the Poles who dropped into Holland in Operation Market-Garden? Ditto the Free French who fought outside French territory?

Or what?

Gary, I believe filibustering applied only to private citizens acting without their government's sanction. So maybe the Abraham Lincoln Brigade could have been considered filibusters, but not US military advisors to Chiang Kai Shek or Free French and Polish forces fighting alongside the Allies.

In any case, it doesn't much matter since the term (and its penalty) fell out of use a long time ago and I am not advocating that we summarily execute captured al'Qaeda fighters.

However, I do think that making a distinction between captured locals and captured foreigners could be useful. For example, by treating captured Afghan Taliban fighters as formal POWs with all the attendant rights, but treating some captured AQ fighter from Pakistan or KSA as an unlawful combatant, we could possibly drive a wedge between them.

More importantly, I believe the modern concept of a pan-Islamic umma (as articulated by OBL and co.) is dangerous to the Westphalian state system that has provided the foundation for international relations since 1648. Bin Ladin's ideology is the real enemy, and must be discredited. Encouraging nationalism in the Muslim world is the best way I can think of to accomplish that end.

But that's a bit OT, so I'll leave it at that for now.

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