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May 22, 2009

Comments

Turbulance

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

The nature of warfare changed regardless of whether you were paying attention or not. We are now struggling to adapt our laws to meet the new reality. War as a function of tribal identity and self actualization is quickly becoming the norm, and snide assertions that it only counts as "war" if there is somebody to declare it against (presumably with an ambassador to hand the declaration to...) seem increasingly bizarre as the body counts in stateless wars grow ever higher.

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

The formal hearing to determine if he is in fact an illegal alien combatant p0rnbotnet has yet to be scheduled. Are you suggesting he should be placed in preventive detention banning?

The nature of warfare changed regardless of whether you were paying attention or not.

Something just went over my head!

I think it was a drone!

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

Detention for the duration of an essentially endless "War on Terror" (or whatever we're calling it this week) is both definable and indefinite.

And what I meant by "Nixon-to-China-ism" is that just as it was politically easier for Nixon to make the opening to China because he was a Republican and a famous anti-communist, it would be easier for the Democrats to trade away our civil liberties in the name of national security, as they are seen as the party less willing to do that kind of thing.

I favor closing Gitmo and dealing with the detainees in the context of preexisting US and international legal institutions. I'm not sure what you mean by "Obama's horrible horrible close-Gitmo trap." It strikes me as a smear tactic, but you can characterize it as you wish.

Detention for the duration of an essentially endless "War on Terror" (or whatever we're calling it this week) is both definable and indefinite.

Oh, so you're saying it's OK then? I'm not sure that counts as "predictable," but if we're using an external reference (an unpredictable one, as you point out), I suppose we could just dust off those Yoo memos and be done with it.

It strikes me as a smear tactic, but you can characterize it as you wish.

Yeah, it's pretty much a smear tactic. It was a pretty bad argument to begin with, so that seemed like the appropriate response.

Apparently you meant that Democrats (actually, you said "progressives," but whatevs, right? lol) are more prone to corruption than Republicans because they're more credible on the issue. I would presume this is because there's objective evidence that they are not, in fact, committed to those policies, but you can explain it how you like.

But if you think repudiating Bush's policies is actually a sneaky backdoor way of facilitating them, go ahead and run with that. That's not a falsifiable premise -- hence your need to use the "may lead to" construction -- so you're not going to get a satisfactory response to it from anyone.

@ThirdGorchBro

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.

Um, what? I'm sorry, this doesn't work. You cannot cite GC as an authority justifying the power to detain individuals for the duration of "hostilities", and then turn around and say that you're only going to "more or less" acknowledge its authority to limit the power a state has over those prisoners. If GC is your justification for quasi-indefinite detention, then you'd best be arguing that such individuals should be treated exactly like POWs.

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

Um, maybe you haven't noticed, but the umma seem rather disinclined to unite politically. Just like Christians around the world are disinclined to unite politically. I mean, global Christian political unification is completely absurd and I see no reason to regard global Islamic political unification as any less absurd.

Thanks, ThirdGorchBro; sorry, I wasn't clear on who needed to take a pill, Turb.

Re: "No, the whole concept makes no sense. Even if Obama insists that there is a war on terror, that doesn't make it true."

Yo, Turb, actually I was agreeing with you and agree with your point above (just didn't make my "except" comment read cyncially enough, I guess).

Lol'd on the "inside baseball mention" -- hard to believe that back-and-forth was just a couple days ago. When you are sitting here in a financial hell staring at an empty lot (no customers; lots of cars) . . . time . . . passes . . . really . . . slowly.

janinsanfran, I think you are conflating two different things:
1) Obama has signed executive orders that ban torture and extraordinary rendition. Because they are executive orders, he can in theory make up new ones, even secret ones as far as I am aware, essentially on whim. This is why government by executive order is a bad idea.

2) Obama is desperate not to get dragged into pressing for criminal prosecutions of the Dubya administration. Now I disagree with this decision of his, precisely because if we don't prosecute administration lawbreaking then this and future administrations will correctly deduce that they aren't bound by law. But you should recognize that this unwillingness to prosecute makes it very difficult for Obama and his staff to talk about the criminal laws barring prosecution: after all, if they say they can't torture because of those laws the logical follow-up question is why they, believing this, aren't calling for prosecution of members of the previous administration.

Because of the second point, it's easier for them to simply dismiss torture legality questions with an invocation of the executive order, if they can. Their reluctance to cite the criminal law doesn't mean they don't see themselves as being bound by the criminal law - it could as easily mean that they are unwilling to risk sacrificing their administration to the uproar that would result from enforcing that law against the previous administration, even as they adhere faithfully to its restrictions. In the medium-to-long-run, a consistent lack of enforcement will erode the laws, which is why I disagree with their position - but it would be an error to overlook an entirely logical, if misguided, political calculation.

@Steve H:

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.

IANACL. But:

Article I §8:
"The Congress shall have power [...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"

See also: Supremacy Clause

"@Gary Farber: Look, I know I don't know. But Axelrod refuses to say that Obama has declared the executive ordering torture is off limits -- contrary to enforceable law."

I watched the clip, and I don't see a point at which he "refused," which is why I asked what the magic words you want to hear are. I'll rephrase: what are the sentences that Axelrod spoke that you take as such "refusal"?

"All he'll say is that Obama has issued an executive order against it. Can he issue an executive order to allow it?"

Of course he can. And he can issue an executive order to make the seas flow backwards, and gravity reverse. He can issue any executive orders he wants. The power to issue executive orders is unilateral and absolute.

The question you seem to wish answered is whether a federal court, and by extension, the Supreme Court, would uphold such an order if challenged, and the answer would depend on the phrasing of the order; if it was weasel-worded enough, yes; if not, no.

I'm not really following what it is you think Obama can do here beyond what he's done. Get a more comprehensive bill against torture through Congress? Because he can't issue an order binding himself from issuing another executive order, nor can he issue an order binding future presidents. He's done what is within the capacity of the president: issued an order banning torture. What beyond this is it you're asking for?

See also: Supremacy Clause

See also, e.g.: Boumediene, Youngstown, etc. etc.

Apparently you meant that Democrats (actually, you said "progressives," but whatevs, right? lol) are more prone to corruption than Republicans because they're more credible on the issue. I would presume this is because there's objective evidence that they are not, in fact, committed to those policies, but you can explain it how you like.

Look, I'll try this one more time: should Democrats (or self-described "progressives") choose to do so, they will have an easier time than Republicans pursuing policies that trade away civil liberties in the name of national security. I do not think they are more likely to pursue such policies, merely that if they do pursue such policies they are less likely to be effectively challenged. However, there also happens to be plenty of evidence that the Obama administration is pursuing such policies.

But if you think repudiating Bush's policies is actually a sneaky backdoor way of facilitating them...

No. To the extent that the Obama administration has actually repudiated Bush administration policies, I applaud them. I criticize them for their refusals to repudiate Bush administration policies on a whole series of issues, however. And I refuse to see these refusals as clever, 11th-dimension chess methods of repudiating Bush administration policies.

"Obama is desperate not to get dragged into pressing for criminal prosecutions of the Dubya administration."

Sure, the President keeps saying he wants to move forward. But isn't the Dick of Cheney making that difficult? At some point, doesn't he have to take Cheney up on his "dare" and put the old crank out of his misery?

@ThirdGorchBro"

"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."

IANAILL. But:

3rd GC Article 4 §2:

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

Note that no mention whatever is made of the nationality of the combatants. All that need be is that they are a member of such a force belonging to a party of the conflict.

I don't know if anybody has posted a link to this yet, but Jack Goldsmith at TNR published an article on Monday the jist of which is that Obama is continuing many of the policies of the latter half of the the Bush admin with better packaging for public consumption. However there was a shift in policy emphasis from the early Bush years (dominated by Cheney) to the late Bush years, so this is not the same as saying that Obama is continuing the policies of circa 2002-2004.

Ben: OK :)

I think your distinction between "they are not doing enough" and "they have a secret agenda" (the latter being a territory that Glenn too often strays into) is legitimate and important.

(With the caveat that I think the perfect is the enemy of the good and all that -- but that's a disagreement on policy; to me, the key thing is to avoid visiting one another's intentions.)

(That said, there are some people whose intentions deserve to be visited -- like Dick Cheney -- but it's often not a place worth visiting.)

I'm not really following what it is you think Obama can do here beyond what he's done. Get a more comprehensive bill against torture through Congress? Because he can't issue an order binding himself from issuing another executive order, nor can he issue an order binding future presidents. He's done what is within the capacity of the president: issued an order banning torture. What beyond this is it you're asking for?

Gary, to presume to answer for janinsanfran (on the basis of one of jan's comments), Obama and members of his administration could alleviate concerns such as jan's by saying the administration is bound by criminal law barring torture, a restriction that he cannot evade by simply changing his mind about executive orders, rather than only saying that they cannot torture because of an (inherently mutable) executive order. I've outlined above my understanding of why they likely don't want to make such a statement, but I don't a desire for such a statement is terribly mysterious.

Sure, the President keeps saying he wants to move forward. But isn't the Dick of Cheney making that difficult? At some point, doesn't he have to take Cheney up on his "dare" and put the old crank out of his misery?
Bedtimeforbonzo, as I took cares to state a couple of times in my comment, I am in fact in favor of prosecutions, to preserve our system of government. But I recognize the potential political price the administration might face if it prosecutes, and I don't think Cheney's political calculations here are wrong: it would take an awful lot more than Cheney has thus far done to make it politically less risky to prosecute his criminal actions than to debate him in the press, especially so long as Cheney remains a relatively ineffective spokesman.

TLT: Perhaps more disturbing is David Brooks criticizing Cheney -- the fact that David Brooks says something that seems to make sense frankly sends chills up my spine, but, well, there it is.

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

The Flying Tigers weren't U.S. government-sanctioned. Neither were American volunteers who joined the Canadian Armed Forces, or British Armed Forces. I was specifically referring, of course, to private individuals, not U.S.-government-sanctioned forced.

http://en.wikipedia.org/wiki/Flying_Tigers

As I recall, a lot of foreign volunteers fought in the American Revolution, too. Not to mention that there are a lot of American mercenaries around the world. Should Blackwater/Xe employees all be executed? (We could exclude those operating under a contract with the U.S. government.)

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

I'm not following what point you were making by bringing this up, then.

"For example, by treating captured Afghan Taliban fighters as formal POWs with all the attendant rights, but treating some captured AQ fighter from Pakistan or KSA as an unlawful combatant, we could possibly drive a wedge between them."

How so? The Pashtuns (quite reasonably) regard the Durand Line as an imposition of a foreign power (which it was); it drives through sets of villages of people of the same tribe, and same families. What sort of wedge do you think we can drive that isn't already there, and isn't already exactly one of the ongoing grievances they're fighting about? They're pissed off that foreign forces (such as the authorities in distant Kabul, or distant Islamabad) impose on them, separating them from their fellow tribal members; increasing that disparate treatment will help how, exactly?

"More importantly, I believe the modern concept of a pan-Islamic umma (as articulated by OBL and co.) is dangerous to the Westphalian state system that has provided the foundation for international relations since 1648."

It strikes me as dangerous only to the extent adherents advocate military force to overthrow the existing political order.

Historically the papacy once similarly advocated universal political and military control over all of Christendom, but eventually they gave up the idea. The idea that all Catholics, or even all Christians, share a commonality, however, is no longer threatening, is it? Or the idea that there's such a thing as the Jewish people, regardless of ethnicity?

I don't see why the Ummah need be more threatening, if Muslims don't regard it as a call to go to war to create a unified, universal, political state. (Which hardly any, statistically speaking, do.)

er, in my previous comment, " I don't a desire for such a statement is terribly mysterious." should have been " I don't think a desire for such a statement is terribly mysterious."

sorry.

The idea that all Catholics, or even all Christians, share a commonality, however, is no longer threatening, is it? Or the idea that there's such a thing as the Jewish people, regardless of ethnicity?

Actually, depends on who you talk to. History seems to indicate that the notion of a unified religious state is threatening to those who perceive it (or claim to) -- and that certainly has some very real consequences.

TLT: Perhaps more disturbing is David Brooks criticizing Cheney -- the fact that David Brooks says something that seems to make sense frankly sends chills up my spine, but, well, there it is.

I had the exact same reaction. When David Brooks starts to sound sensible, it may be a sign that you've been wearing the Ring of Power for too long and it is time to take if off.

My interpretation is that we are now seeing the Brooks wing of the Village make a strategic decision to cut Cheney loose and throw him to the wolves, while tidying up Bush's legacy by using Cheney as the scapegoat. The old "if only the Czar knew" trick.

"Gary, to presume to answer for janinsanfran (on the basis of one of jan's comments), Obama and members of his administration could alleviate concerns such as jan's by saying the administration is bound by criminal law barring torture, a restriction that he cannot evade by simply changing his mind about executive orders, rather than only saying that they cannot torture because of an (inherently mutable) executive order. I've outlined above my understanding of why they likely don't want to make such a statement, but I don't a desire for such a statement is terribly mysterious."

I take your point, although I must say that it hadn't crossed my mind that David Axelrod was somehow refusing to say that the Obama administration was bound by law. I didn't notice that he did that. To be sure, I don't know what he'd say if that precise question was put to him, but I'd be surprised if he said "no, we're not bound by the law on torture."

"History seems to indicate that the notion of a unified religious state is threatening to those who perceive it...."

A "commonality" isn't at all the same as a unified political state.

"When David Brooks starts to sound sensible, it may be a sign that you've been wearing the Ring of Power for too long and it is time to take if off."

Call it what you will, Brooks has been cozying up to this administration from the start.

"The old 'if only the Czar knew' trick."

In the category of the exception that proves the rule, it's not actually insanely hard to believe that in this case the Czar took rather a while to catch on to, or care about, some of the Vice-Czar's ways. I don't see that it tidies up the Czar's legacy particularly, though.

"Fool me once, shame on — shame on you. Fool me — you can't get fooled again" isn't a particularly admirable legacy.

Glenn Greenwald cites this post in an interesting way.

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

I'm not. At least, I'm not arguing for anything I didn't argue for for all of the last seven years. I've always said that this is an international conflict with enough of the same characteristics of a war that, in many ways, it should be treated like one. In this case, that means holding POWs. I never argued that Bush didn't have that power. Had he held these people AS POWS, WITH THE RIGHTS THAT THAT ENTAILED, my objection would have been far more muted than it was.

In practice, I think that the character of this conflict is sufficiently different from "war" that there should be some sort of review, preferably judicial, though it would involve far lower standards of evidence than a criminal trial. Those who are arguing that this is not a war, full stop, are burying their heads in the sand. It's certainly something more than just a criminal conspiracy, so dealing with it exclusively through the legal process isn't any better an idea. We need to use the tools available, and craft some better ones.

Nombrilisme Vide:

Note that no mention whatever is made of the nationality of the combatants.

Yes, there is. That's what "belonging to a Party to the conflict" means. The Parties are the states at war, and their citizens belong to them. "Operating in or outside their own territory," means that they are allowed to fight those that they are at war with in places other than within their own borders.

Gary:

The Flying Tigers weren't U.S. government-sanctioned. Neither were American volunteers who joined the Canadian Armed Forces, or British Armed Forces. I was specifically referring, of course, to private individuals, not U.S.-government-sanctioned forced.

Well, yeah. The Flying Tigers were illegal combatants. I'd thought that that was pretty well established at the time. Under the Geneva Conventions, the Japanese were entitled to treat them as such. They weren't allowed to horribly abuse them, and deserved punishment for that, just as the Bush administration does. This is not to say that I think that it's morally justified, or even a good idea, to do so in all cases. It's just that, legally, that's the way the rules are written.

One thing that hasn't gotten enough mention here is that it's a political impossibility for Obama to say anything other than that he's in favor of indefinite detention of some sort for some of the prisoners at Guantanamo, regardless of whether they can be successfully tried in a court of law. He's already having trouble with Congress approving the shut down of the place. How do you think that's going to go if the rules he lays out before the Senate include the proviso that Khalid Sheik Mohammed is going to be turned loose? It would turn into a fiasco. For better or for worse, you're going to have to decide whether a plan for indefinite detention is worse than the status quo, because those are your two options.

Frankly, I'm not even on your side on this. I would be opposed to a plan that would turn KSM loose. Despite the fact that the last US government tortured him, I'm still confident that he's guilty. The proper response to the torture would be to punish those who did it. If it takes a fudge to hold onto him, I'm in favor of it. As it happens, as I stated above, so long as we treat him as a POW, I don't think it even requires a much of a fudge. It certainly doesn't require steps beyond what I'm willing to take. Establish that this power to declare a POW is not absolute, and requires judicial confirmation. That works for me.

Great thread everyone...

I think that the old definition of war as being between two states is totally obselete and has been for half a centurey There is no question in my mind that a state of war can exist between a state and a non-state actor. This is to me so obvious as to not really require argument, but think of such examples as Mao tse Tung's successful war against the duly constituted government of China or the FLN's war against the french state in Algeria. Those were quite definitely wars, not crimes or rackets. There is no question that al Queda considers itself at war with the USA. Turbulence and others better face the facts.

If the war is the right frame to look at this issue, the issue is whether to consider the detainees POWs. Those who are not considered POWS get released, those who are get held until the war is declared over. We can leave it to military tribunals to determine who is and who isn't a POW.

It also seems that those who are POWS can be also tried for war crimes, if you like. But that's in addition to them being POWS.

We can also have courtsreview from time to time whether someone should be held. I'm OK with that.

Isikoff here provides no encouraging words.

[...] According to three sources who attended the meeting, Obama reiterated his intention to retain a version of the military-tribunal system established to try terror detainees and said his administration will likely end up adopting some form of "indefinite detention" policy to justify holding some selected suspects without trial. Still, Obama brusquely rejected suggestions by some of those present that, in doing so, he was adopting key tenets of Bush-era policies considered unacceptable by his liberal supporters.

[...]

The sources, all of whom asked not to be identified because of the White House insistence that the meeting was private, also said Attorney General Eric Holder sat by silently while the president curtly dismissed the idea that his Justice Department should criminally prosecute at least one Bush administration official for torture, if only as a symbolic move to demonstrate that actions such as waterboarding will never be tolerated again.

[...]

It was at that point, toward the end of the meeting, that one attendee raised the idea of criminal prosecution of at least one Bush-era official, if only as a symbolic gesture. Obama dismissed the idea, several of those in attendance said, making it clear that he had no interest in such an investigation. Holder—whose department is supposed to make the call on criminal prosecutions—reportedly said nothing.

This is not change I believed in.

The sources, all of whom asked not to be identified because of the White House insistence that the meeting was private

In both this and the NYT article hilzoy links there are 2-3 anonymous sources ("human rights advocates") who are -- so far -- the only place we've heard the term "preventive detention," as far as I can tell.

Again, is there anything to indicate that this is official policy rather than the characterization of the people in the private meeting? Because if so, I can't find it.

This is not change I believed in.

Indeed, forgoing show trials ("the idea of criminal prosecution of at least one Bush-era official, if only as a symbolic gesture") is surely the death knell of the rule of law in America. How will we ever pursue legal sanctions against terrorists without decent kangaroo courts? Woe, woe, woe...

"Frankly, I'm not even on your side on this. I would be opposed to a plan that would turn KSM loose. Despite the fact that the last US government tortured him, I'm still confident that he's guilty. The proper response to the torture would be to punish those who did it."

Are you opposed to the Miranda Rule in general?

"I think that the old definition of war as being between two states is totally obselete and has been for half a centurey There is no question in my mind that a state of war can exist between a state and a non-state actor."

Setting aside that rebellions, civil wars, and wars of independence have always been recognized (if not always by the party being rebelled against) as wars, not just for "half a centurey," you seem to be unfamiliar with the Third Geneva Convention, which has always recognized that wars take place between parties other than nations "armed conflict not of an international character." See Articles 3 and 4.

Note that, as we've previously discussed here, and I've quoted at great length in the past, though not in recent months, the Third Geneva Convention imposes a great many obligations upon the authority holding the prisoners. See Section II. Internment of Prisoners of War.

@J. Michael Neal:
Yes, there is. That's what "belonging to a Party to the conflict" means. The Parties are the states at war, and their citizens belong to them.

Two points. First, as I said, IANAL. My understanding is based on a moderately uninformed reading of the text.

Second, is there? That text strikes me as possibly ambiguous, though to my eye the most ready reading places "militias" and "volunteer corps" as the object of "belonging to" rather than "members". This is consistent with the commentary I have heard on this section, as well as straightforward resolution of scope ambiguity. [NP [P NP [V NP]]] etc. rather than [NP [P NP] [V NP]] etc.

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions [...]

Again, IANAILL, so if you are, I defer to your understanding. However, in the past I have heard this passage cited as covering foreign members of resistance movements as well as natives, so I am reluctant to accept your say-so to the contrary barring personal expertise in IL or an authoritative third-party citation backing your interpretation.

Gary clearly you do not know what you are talking about because the technical term for the Geneva Conventions is "quaint"

THAT'S WITH A 'Q'

Gah, screwed up my bracketing in the second diagram. [[NP [P NP]] [V NP]], not [NP [P NP] [V NP]].

We can leave it to military tribunals to determine who is and who isn't a POW.

Can we, really? The military commissions' track records so far haven't been that great - witness the infamous incident several years ago (it was in a This American Life episode) where the military commission consisted of unsourced classified allegations that the accused was all sorts of evil, and through an error the accused's lawyer got hold of the guy's actual file, which included a piece of paper saying, in essence, "we've got nothing on this guy, he's no threat". The commission ruled that they daren't release him.

The problems with the POW model aren't just that Al Qaeda will never surrender; there's also the rather critical one that the people deny being militants and deny belonging to Al Qaeda in any meaningful way, and - your statement to the contrary - I rather doubt that we've often have the proof that would make a fair judge, ruling on a habeas petition, rule that an accused Al Qaeda member is subject to POW status.

One thing, though: I'd be greatly relieved if Obama would issue a statement that this kangaroo detention system would only be used for existing, Bush-era detainees, the people we swept up indiscriminately, held without evidence or proper records, and then marinated in hatred for seven years. The thing about this that most worries me, beyond the injustice to existing detainees never permitted to plead their innocence and the precedent of tolerating existing injustice, is the idea that it sets a precedent for future detentions, i.e. that it not only permits existing injustices but can give us future creation of additional, new injustices.

Are you opposed to the Miranda Rule in general?

IANAL, but I seem to recall that the authority-friendly Roberts court recently eviscerated the Exclusionary Rule.

IANAL until the bar exam (hopefully soon thereafter, anyway), but Hamdan makes it pretty clear that, in the U.S. at least, the Geneva Conventions create a floor for detainee treatment, regardless of combatant status.

"Illegal combatants" (or whatever we call them) are treated differently, but there are still nonviolable conditions on their treatment.

btfb, sorry for jumping on you; my bad.

Adam, I was wondering if you have any answers to the questions I raised here and here?

From the Hamdan v. Rumsfeld plurality decision, Section V:

Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless.
(emphasis in original)

"How do you think that's going to go if the rules he lays out before the Senate include the proviso that Khalid Sheik Mohammed is going to be turned loose? It would turn into a fiasco."

As a practical matter, that's almost certainly correct.

"For better or for worse, you're going to have to decide whether a plan for indefinite detention is worse than the status quo, because those are your two options."

But I'm not the president, so I can afford to stand up for principle and ideals, and that's my third option.

It's necessary that there be people who do that, and not bow only to the-only-practical-options.

It's always necessary.

Turb: that first question does not appear to be to me, but they seem similar at least; if the question is "what is the functional limit on detention?" then my immediate thought is that it's a fact question.

That is, you raise the hypothetical of an AQ prisoner who changes their story -- this strikes me as analogous to a prisoner who claims to be Don Corleone: it's probably not probative evidence even in a RICO case.

The question is whether there is sufficient reliable evidence to charge someone for a terrorism-related crime; the fuzzy area, I suppose, is whether we detain people any longer than usual on charges of terrorism, but that doesn't strike me as all that controversial. If the issue is constrained by practical issues like evidence collection then the prosecution could get, e.g., an automatic one-time extension as a default rule. That doesn't necessarily entail infinite extensions without reason, which would clearly violate Boumediene's habeas protection.

Moreover, I don't see how to interpret Obama's speech as endorsing that option. Without more, it strikes me as disingenuous spin. As I said earlier, there's a significant difference between "indefinite detention without recourse" and "preventive detention," and that's a pretty big gap to impute to the Administration based on the anonymous claims of some people in a 15-minute meeting.

Two additional points:

1. Even in our domestic courts, initial detention is not uniform -- otherwise, bail amounts would not be discretionary. I am still unsure why everyone seems to be reading "preventive" as meaning "perpetual" rather than "preemptive."

2. Likewise, in domestic prisons, recourse is limited -- otherwise, parole would not be discretionary. I don't see why limited, proscribed recourse is equivalent to "no recourse whatsoever." Surely regular Congressional review is at least reasonably equivalent (if not preferable to) review by a parole board.

Essentially, it seems to me that most everyone is buying into Cheney's false dichotomy. The fact that we have some procedural limits does not mean throwing all detainees out on the street; conversely, procedural limits themselves do not entail locking up all potential suspects and throwing away the key. This seems like quite a lot to impute on the basis of current information.

a very slippery slope down into totalitarianism and arbitrary arrest.

when i read some of this, at first I thought he was referring to all the former members of the bush-cheney administration!

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

...or because evidence has been destroyed by the cia or its contractors etc etc

"I am not going to release individuals who endanger the American people.."

couldn't have made a clearer case for rounding up cheney, bush and rice and shipping them off to The Hague

Actually, I want to come back to the RICO thing because that's a really good analogy.

There are a lot of legitimate criticisms of anti-organized-crime laws. They sweep pretty broadly and there's certainly the potential for prosecutorial abuse.

On the other hand, their value is also pretty clear: there are a lot of ways to game the courts, and without some help, you end up having to go after Al Capone on tax evasion.

(The pop culture analogy is probably between "The Untouchables" and "24" -- unlimited police power sound cool in practice; in principle, it tends to go all Hoover/Nixon/Lord of the Flies in a hurry.)

Now, without taking a position on RICO, one thing you can say about it -- to paraphrase a wise man -- is that at least it's an ethos. The profession to oversight and accountability is in itself preferable to its denial. It filters down into the institutional culture; it sets norms of behavior; it fixes the limits of public accountability. Disavowing the rules has the opposite effect.

Even if the rules themselves are problematic -- as RICO undoubtedly is -- the fact that they are intended to set predictable boundaries is important. Obama hasn't proposed anything more objectionable than RICO and the fact that the previous Administration did everything it could to abuse the system doesn't mean that rules themselves are a bad idea or that we should kill the messenger.

"If you really want to save American lives, ban cars and fast food."

So true.

It wasn't the loss of American lives on 9/11 that so deeply disturbed this country. Thousands of innocent Americans die from multiple causes every year. What turned this country insane after 9/11 was its assault on the American ego. To think that mere camel jockeys could actually outsmart and harm Americans -- on American soil no less. Unthinkable!

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

I hope you don't really believe that. By that standard, hanging for wolf whistles and lewd comments is legitimate. That is in no sense an adequate standard; whether is law is harsh, inappropriate, or unconstitutional is absolutely critical to its legitimacy.

a very slippery slope down into totalitarianism and arbitrary arrest.

There are people who seem to want to pretend that we have never held POWs before.

Gary:

Are you opposed to the Miranda Rule in general?

This is close enough to being gratuitously inflammatory enough that I contemplated just not responding at all. I recommend that you go back and re-read my post, and grapple with the fact that I'm not talking about holding anyone in indefinite detention as a matter of criminal law, but rather as a party to a war.

But I'm not the president, so I can afford to stand up for principle and ideals, and that's my third option.

It's necessary that there be people who do that, and not bow only to the-only-practical-options.

It's always necessary.

All right, but my comment is directed towards those who are getting angry about Obama. If we admit that, as a practical matter, Obama can't get both, shouldn't we spend our time getting mad at someone else?

@Adam:
1. Even in our domestic courts, initial detention is not uniform -- otherwise, bail amounts would not be discretionary. I am still unsure why everyone seems to be reading "preventive" as meaning "perpetual" rather than "preemptive."

Here's my concern: we're talking about holding them as PoWs (well, sorta mostly) in a war against an abstract concept. So when is it done? Ever? Even if we round up or kill everyone professing allegiance to even the most abstract formulation of AQ's vision, we'll still have a ready core in our dangerous preventative detainees... so if we release them, AQ's back! No, seriously. I say that glibly but I have no doubt it would be argued in earnest were the "war on terror" ever one day "won". Which is to say, I think we can ignore the PoW comparison in terms of attempting to posit duration of detention.

So what are we left with to prevent "preventative" from being "perpetual"? We're left with some sort of periodic review to assess if a detainee is "still a threat", then? I cannot in all honesty believe that there is the least chance many of the detainees will ever be deemed "safe" to release, unless and until they are grey and feeble... if then. Take, e.g., KSM. It is popular wisdom that we have copious amounts of (tainted) evidence against him... evidence which won't stand up in court, but is surely good enough for such a status review (else he'd presumably be released right from the get-go). Lacking a "natural" bound to their detention, some periodic review would be the only possible termination of their detention. What substantial reason do we have to believe that this would ever change for him or his peers? If there is none, we are in fact discussing perpetual detention w/o trial.

We all remember KSM's mugshot. It is almost the exact opposite of a photo showing an enemy soldier in uniform captured on the battlefield. As far as I know, he was not captured by the US military. I forget whether it was the CIA or the FBI that snatched him, but I seem to recall he was "arrested" in Karachi with the acquiescence, if not the aid, of the Pakistani government whose citizen he is. I could be wrong, but I think he was suspected of terrorist acts even before 9/11, presumably on SOME evidence.

All that would seem to make KSM an unlikely candidate for POW status. Kidnap victim, possibly. Apprehended criminal, almost certainly.

The only complication would seem to be that "the constable has blundered" in his case. Was the blunder torturing KSM, or was it torturing Abu Zubeyda? Zubeyda's FBI interrogator has said that Zubeyda fingered KSM in ordinary interrogation BEFORE any torture happened. We don't know whether that's true; we dont know whether "fingered" means telling the FBI merely KSM's address or testifying to personal knowledge of crimes committed by him. But these would seem to be the kinds of questions ordinary criminal trials are designed to answer. Perhaps an ordinary trial is now legally impossible, thanks to the sadistic incompetence of the Bushies.

If so, I go back to my original question: if KSM now DENIES his allegiance to al-Qaida, IN OPEN COURT, what happens? Does al-Qaida welcome him back? Does Pakistan take him back as an honored martyr? Does he contest repatriation to Pakistan because they're likely to try him and hang him?

If he PROCLAIMS his allegiance to al-Qaida in open court, does the fact that he was waterboarded by the CIA on Dick and Dubya's orders automatically get him acquitted of any possible charges?

I ask these questions in all sincerity. I don't know the answers. I just think KSM is a poor example of someone who might fit the "preventive detention" category. And if HE doesn't, who the hell does?

--TP

All that would seem to make KSM an unlikely candidate for POW status.

Again, the meaning of the term "war" is changing. Yes, it could be perpetual detention. Given that KSM masterminded an act of war without claiming the authority of being a state actor, my heart bleeds. If he wanted a war by the old rules, he should have stuck with the old rules.

For the life of me, I still can't understand why we want to keep guys for which we lack sufficient evidence to convict in a real court (or UCMJ tribunal) imprisoned. I mean, our government has consistently lied about, well, everything relating to terrorism and war. Which means that statistically, at least some of the alleged bad guys are probably completely innocent people who pissed off powerful locals. And the ones who are real AQ are going to be useless after we release them: their operational knowledge is half a decade out of date and they're probably so psychologically damaged that they'd fall apart when confronted with a traffic jam let alone a complex operation.

Beyond that they're untouchable: if you worked for AQ, would you get within a 100 miles of an AQ guy who was voluntarily released by the US government? How could you ever trust him? How could you ever be sure that he hadn't been turned or mind controlled or injected with a secret tracking device? You couldn't. These people would be completely radioactive if we ever released them. In fact, if the government released them and then leaked a story to the NYT about how they injected them with a secret invisible tracking agent, hillarity might ensue. Or AQ might cut them into millions of little pieces looking for the damn things.

Even if I thought it made sense to create a bizarre totalitarian legal system, how would these losers possibly justify the man hours needed to do so? What the heck do we gain from keeping them? Is there any gain besides the fact that releasing them is political suicide? And if that's the real issue, then why are we pussyfooting around: it doesn't matter what crazy legal categories we invent, these people must be imprisoned because the people of the United States cannot tolerate their release. We should have the stones to just admit that openly instead of pretending that they pose some sort of threat to us.

Obama has had these guys on ice for years; the notion that he needs a few one-time temporary delays seems a little silly.

The dust bunnies in my closet work for AQ. Guess I better burn the whole house down.

Turbulence: For the life of me, I still can't understand why we want to keep guys for which we lack sufficient evidence to convict in a real court (or UCMJ tribunal) imprisoned.

Well, for Obama, I think there are three or four reasons:

1. If he releases them, he has to deal with a right-wing media circus, in which he's the gladiator and no one is going to give him the thumbs-up. Doing the right thing regardless of political cost is just not Obama's style, and while releasing them would absolutely be the right thing to do, it carries with it the cost that, to people for whom he's already the natural target as a black President and a Democratic President, he will turn into the same kind of vilified hate-object as Hillary Clinton.

2. If he releases them, just for his political survival, he has to make clear that he is doing so because, regardless of what they did before they were imprisoned, their years of extra-judicial imprisonment and torture have ensured that no court in the US could convict them of any crime. And that's a clear step towards charging Bush & Co with the crimes of extra-judicial imprisonment and torture, and Obama does not want to take any steps in that direction.

3. There's only a few hundred of them, they're not white, they're not American, they're Muslims, and they've been accused of monstrous crimes. Very few people are going to care as a point of principle that they should be released. I have no idea if Obama is one of those people or not, but see (1).

4. Bush merely asserted that on his sayso, any one in the world - US citizen or not - could be defined as an "illegal combatant" to whom anything whatsoever could be done. There was no legislative framework behind this, it was a clear absurdity. But if Obama legislates this principle - that it is possible under a form of law to declare someone effectively a "nonperson" who can be imprisoned indefinitely without habeas corpus or any other civil right, that could be an extremely useful permanent resource for Obama and future Presidents. See FISA. Which, of course, Obama would only use on the really bad people.

That's what I think, anyway.

@JMN:
Again, the meaning of the term "war" is changing. Yes, it could be perpetual detention. Given that KSM masterminded an act of war without claiming the authority of being a state actor, my heart bleeds. If he wanted a war by the old rules, he should have stuck with the old rules.

...and wars simply didn't happen before the rise of the modern nation state, and after non-state actors certainly never orchestrated focused campaigns of violence against them, but 7.5 years ago Everything Changed!

I'd agree that the meaning of the word "war" is being changed, but I call shenanigans on vaguely helpless "that's-just-how-it-is" formulations making it sound as if the alteration of its meaning was not a deliberate, willful act of policy. And I see no reason to deem the guided "semantic" drift you advocate to be necessary, let alone desirable.

Nombrilisme Vide: You say "we're talking about holding them as PoWs (well, sorta mostly) in a war against an abstract concept".

The war isn't anymore "against an abstract concept". Although the Bush administration referred to the "war on terror", the Obama administration does not. The initial AUMF (Congressional war authorization) specified that "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

That would not have authorized the invasion of Iraq, for example, except that Bush Cheney lied. So, Obama, not carrying forward the lies, does have a more specific mission. Granted, it's not as specific as it should be, and I wish that the actual end point were better defined. But it's not "war against a concept" anymore.

Not sure if this has been mentioned here yet but preventative, and even indefinite, detention of violent sexual predators has been upheld by the SCOTUS and is practiced in some states already. It became popular in the 90s.

From wiki:

"Some U.S. states have a special status for criminals designated as sexually violent predators, which allows these offenders to be held in prison after their sentence is complete if they are considered to be a risk to the public."

You should be able to google for more on this practice.

Kansas v. Crane is the relevant sexual predator case. The "sexual predators" are given a hearing and have to be determined to be candidates for civil commitment due to a significant degree of lack of control. Again, not "preventative detention" in any sweeping sense, but detention in line with civil commitment due process protections.

"I am still unsure why everyone seems to be reading 'preventive' as meaning 'perpetual' rather than 'preemptive.'"

Is one better than the other? Don't they both smack of "Minority Reporting" our principles and our way of life?

Meanwhile, JMN notes that it's not like we've never held POWs before. And if as he or someone else said, it would be foolish not to acknowledge we are at war with A-Q. Then, by that logic, KSM and the like are POWs.

However: (1) If this we have indeed been at war since 9/11, then purusing war crimes should be incumbent for President Obama, not open to debate. (2) And if acts of terroism -- no matter how great the atrocity -- are acts of war, then the POWs held as a result of these acts, this war, will be held in perpetuity. Forever. Because terroism will be with us Forever.

Also, the Great Obama's speech the other day no doubt was intentionally vague the other day. That makes it easier for him to continue the Bush-Cheney policies if he sees fit -- or expand them.

@Turbulence

Beyond that they're untouchable: if you worked for AQ, would you get within a 100 miles of an AQ guy who was voluntarily released by the US government? How could you ever trust him? How could you ever be sure that he hadn't been turned or mind controlled or injected with a secret tracking device? You couldn't. These people would be completely radioactive if we ever released them. In fact, if the government released them and then leaked a story to the NYT about how they injected them with a secret invisible tracking agent, hillarity might ensue. Or AQ might cut them into millions of little pieces looking


All this sounds somewhat reasonable, but AQ may have have a different view. This is an organization that has a totally different view of reality than you. KSM may be welcomed back as a hero and a martyr to the cause, and sent right back out to kill more Americans. There is a technical term for people who contemplate the release of KSM and people like him. The technical term is crazy-bats###t crazy.


Luckily, Obama isn’t anything like that, so we will have some system of preventive detention

Even if I thought it made sense to create a bizarre totalitarian legal system, how would these losers possibly justify the man hours needed to do so? What the heck do we gain from keeping them?

How about stopping them from trying to kill us? That a good enough reason for you? Again , if a military tribunal determined that these guys are truly not a danger, that’s one thing. But then there are guys that the military views as potentially dangerous who can’t be convicted in a criminal court of law. Those guys we hold on to. The law of war says we can.

Indeed during good ol’ WW2, that’s what we did.

stonetools, thank you for pointing out that this isn't a domestic criminal case. It might have been treated as one if it had been seen as one from its incipience, but it wasn't. It's a war now.

"I am still unsure why everyone seems to be reading 'preventive' as meaning 'perpetual' rather than 'preemptive.'"

In an earlier comment I explained why: AQ can never be eliminated so the government can (and will) always claim that AQ is still present and still a threat. The periodic judicial reviews have literally nothing to review that can change over time except the prisoner's opinion and for political reasons we cannot give credence to that:

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

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

All this sounds somewhat reasonable, but AQ may have have a different view. This is an organization that has a totally different view of reality than you.

If AQ weren't seriously concerned about American threats to their organization, they'd be completely dead right now.

KSM may be welcomed back as a hero and a martyr to the cause, and sent right back out to kill more Americans. There is a technical term for people who contemplate the release of KSM and people like him. The technical term is crazy-bats###t crazy.

Sent back to kill more Americans? Why should that worry me? AQ has lots of foot soldiers. Why should I care about the addition of one more? I mean, if I lose the ability to do basic arithmetic, I can see why adding one to a very very large number might be a huge problem, but since I have a functioning brain, it doesn't really bother me.

How about stopping them from trying to kill us? That a good enough reason for you?

No. Lots of people are trying to kill us. Grow up. Get a pair. Stop being willing to throw away every aspect of civilization because you can't control your own fear.

Again , if a military tribunal determined that these guys are truly not a danger, that’s one thing. But then there are guys that the military views as potentially dangerous who can’t be convicted in a criminal court of law. Those guys we hold on to. The law of war says we can.

This is a lie. A proper military tribunal would have been a court martial under the UCMJ. The UCMJ rules of evidence are much easier for a prosecutor to satisfy than traditional criminal rules. And the people sitting judgment would be American military officers. But the Bush administration correctly decided that a bunch of American military officers would not convict KSM even under the prosecutor-friendly UCMJ rules. That's how crappy the case against him is.

Heck, he hasn't even been convicted in the kangaroo court tribunal system that Bush set up.

However: (1) If this we have indeed been at war since 9/11, then purusing war crimes should be incumbent for President Obama, not open to debate.

I agree, but Obama's clearly placing his domestic agenda over the interests of justice. I don't agree with the choice, but I don't envy his needing to make it, either.

(2) And if acts of terroism -- no matter how great the atrocity -- are acts of war, then the POWs held as a result of these acts, this war, will be held in perpetuity. Forever. Because terroism will be with us Forever.

Well, this is why we hear about "preventive detention" rather than POW camps -- b/c the situation is a new one.

One problem is that holding any questionable person for years seems likely to make him *more* likely to hate and oppose the U.S., not less. So the "periodic reviews" would seem unlikely to justify anyone's release.

The idea may not work out ultimately, but it's worth addressing -- PROVIDED we get a lot more facts from Obama. What, particularly, justifies PD? Whom are we looking at PD for? Who's going to make these calls? With what checks and balances? etc.

"Again, not 'preventative detention' in any sweeping sense, but detention in line with civil commitment due process protections."

The KGB and Soviet Union, as well as the Gestapo in Nazi Germany, had all sorts of nice due process protections, too -- on paper. They both gave all sorts of careful lip service to legality, and protections of the individual. Perhaps this is forgotten now, by people who haven't read the history thoroughly enough.

The imprisonment of "sexual offenders" past their sentences is an abomination, as is the practice of putting people on lifelong "sexual offenders" lists (I'd say "no matter how insignificant their offense," but the concept is wrong as regards anyone.)

"the Great Obama's speech"

What's the point of this sort of usage? Has anyone here referred to "the Great Obama"? Does anyone? Isn't this as juvenile as calling Bush names, or calling anyone names?

(Okay, lots of people do this; I've always thought it just makes lots of people look like they have the maturity of an eight-year-old; name-calling isn't an argument, and makes one look like one doesn't have an argument. IMO.) (And, yes, I've always objected to it as regards Bush, Cheney, and Republicans, or anyone, in exactly the same way.)

"KSM may be welcomed back as a hero and a martyr to the cause, and sent right back out to kill more Americans."

He wouldn't seem to be in shape to do any such thing. Nor would he exactly easily blend into a crowd.

"There is a technical term for people who contemplate the release of KSM and people like him. The technical term is crazy-bats###t crazy."

This is notably not an argument; it's the logical fallacy of begging the question.

"How about stopping them from trying to kill us?"

Which "them"? Most of the people at Guantanamo were found to be completely innocent; that's why hundreds were released. Of the rest, while some are undoubtedly guilty, none of had fair trials to determine that. You're asserting the right of the executive to unilaterally decide who is guilty of being a terrorist? How do you know that a future government wouldn't decide that that's a member of your family? What would the basis be for their not so deciding? Is your argument "trust the government to only pick on guilty people"?

"Indeed during good ol’ WW2, that’s what we did."

In "good ol' WW2" we applied the Geneva Conventions: are you advocating that we do this with "the terrorists"? Give them canteens, and a rate of pay,the right to mail, guarantees from a Protecting Power, visits from a Neutral Power, relief shipments, elected representatives, a Mixed Medical Commission, ranks and titles, saluting of their officers, rights to prisoner ministers, "opportunities for taking physical exercise, including sports and games, and for being out of doors," the right to, when questioned, "when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information"?

Because we're obligated to do all these things, and more, for prisoners of war, you know.

" . . . b/c the situation is a new one."

Yes and no.

A-Q may be new, relatively speaking.

But terroism, in one form or another, has been around forever.

So "this is why we hear about 'preventive detention' rather than POW camps" doesn't wash completely.

Shouldn't the debate we are currently having been had -- or resolved -- long ago? Of course, the blame for that goes to Bush-Cheney. But the ball has been in President Obama's court now for 100-plus days and counting.

And going back to the point that terrorism has been around forever -- even on our shores before 9/11, but that being the event that triggered the "war" -- why has this been such an ongoing political football in this country? I mean, what do the British do? How about Israel? Is there an easy answer that we just aren't seeing?

I'm just thinking out loud, Anderson, as I agree with much of what you are saying, especially: "The idea may not work out ultimately, but it's worth addressing -- PROVIDED we get a lot more facts from Obama. What, particularly, justifies PD? Whom are we looking at PD for? Who's going to make these calls? With what checks and balances? etc."

" . . . b/c the situation is a new one."

Yes and no.

A-Q may be new, relatively speaking.

But terrorism, in one form or another, has been around forever.

So "this is why we hear about 'preventive detention' rather than POW camps" doesn't wash completely.

Shouldn't the debate we are currently having been had -- or resolved -- long ago? Of course, the blame for that goes to Bush-Cheney. But the ball has been in President Obama's court now for 100-plus days and counting.

And going back to the point that terrorism has been around forever -- even on our shores before 9/11, but that being the event that triggered the "war" -- why has this been such an ongoing political football in this country? I mean, what do the British do? How about Israel? Is there an easy answer that we just aren't seeing?

I'm just thinking out loud, Anderson, as I agree with much of what you are saying, especially: "The idea may not work out ultimately, but it's worth addressing -- PROVIDED we get a lot more facts from Obama. What, particularly, justifies PD? Whom are we looking at PD for? Who's going to make these calls? With what checks and balances? etc."

"What's the point of this sort of usage?"

Make of it what you will, perhaps that is the point.

"Has anyone here referred to 'the Great Obama'?"

I have.

Semi-related and worth reading, although you probably won't thing so, Gary.

Gary: "The imprisonment of 'sexual offenders' past their sentences is an abomination, as is the practice of putting people on lifelong "sexual offenders" lists (I'd say 'no matter how insignificant their offense,' but the concept is wrong as regards anyone.)"

I agree with this completely. I'm not as sure I disapprove of all civil commitment proceedings, and I certainly don't think all can be compared with the KGB.

"Semi-related and worth reading, although you probably won't thing so, Gary."

It was more so before the fourth time you linked to it.

"...and I certainly don't think all can be compared with the KGB."

Neither do I; I was simply pointing out that nice guarantees and pretty words on paper aren't worth anything if there's no spirit to live up to them.

"It was more so before the fourth time you linked to it."

Didn't know you had checked it out. (Acutally, the third time, but who's counting?)

Sapient, if you think the courts should release known murderers on legal technicalities, why do you think we must keep alleged terrorists imprisoned indefinitely when we have no real evidence to convict them? Or do you advocate for the abolition of the exclusionary rule?

"b/c the situation is a new one."

Around the turn of the last century, and lasting at least through the 20's, the US was subject to a fairly steady stream of acts of terror from anarchists living in this country.

"Acts of terror" includes the assassination of a President, two attempts on the life of the Attorney General, a coordinated bombing campaign in which 30 bombs were set off in one day in different cities, and a bomb set off on Wall St at noontime which killed 38 and wounded 400.

Much of this was against the background of the Russian Revolution, which understandably made a lot of folks quite nervous.

The response was the Palmer Raids, the deportation of suspected anarchists, the Sedition Act of 1918, and the Anarchist Exclusion Act.

One of the folks deported was Luigi Galleani, who openly called for the violent overthrow of the US government, and who provided bomb-making instructions in a newsletter he published.

He wasn't waterboarded, chained to the ceiling, beaten to death, "walled", or stripped naked, doused with cold water, and left in a cold room. They just sent him back to Italy.

The disclosure of abuse of prisoners (including alleged torture) and other illegal actions under the color of the Sedition Act and the Palmer Raids caused the Sedition Act to be overturned two years later, and likely cost Palmer a Presidential nomination.

The nation, faced with a regular diet of anarchist bombings over a period of years, overreacted. By "overreacted", I mean we adopted laws and procedures that violated our own Constitution. Within a couple of years we regained our sense of balance and overturned those laws and practices, in spite of the fact that the bombings themselves didn't actually stop.

That was then, this is now.

Turbulence, No, I don't advocate for abolition of the exclusionary rule. And if Obama set the terrorist suspects free, I would commend him. I just don't condemn him for not doing so at this time because I don't think the prisoners are necessarily entitled to the same protections as criminal defendants. Certainly I'm trusting that Obama has compelling information (if not trial-worthy evidence) that these people are a threat and weren't just bystanders caught in the fray.

Obama doesn't even have his justice department together yet - there is a planned filibuster of Dawn Johnsen, etc., as well as any Supreme Court nominees. He has to walk a lot of political tightropes and it won't help the cause of justice in the long run for him to be accused of "endangering America" by "setting terrorists free". If his system fails to withstand Constitutional scrutiny, they'll be released.

I know there's a limit to political pragmatism, and I know you think the election has been won and we don't have to worry about the opposition gaining ground anymore. I disagree. I believe that there is another "perpetual war" against Dick Cheney and his admirers. I'm willing to give Obama a pass for awhile (and I don't believe that he's trying to institutionalize Bush-style justice).

"He has to walk a lot of political tightropes and it won't help the cause of justice in the long run for him to be accused of "endangering America" by "setting terrorists free"."

The cause of justice is furthered by treating people justly.

Period.

There is no other course of action that will further the cause of justice.

No matter what Obama says, does, or thinks, his opponents will do their best to crucify him for it. He seems like a guy with the wherewithal to tell the lot of them to piss off, and that is what he should do.

I'm not happy with the idea of holding people as POWs indefinitely in a war that never ends. On the other hand, I think it's wrong to argue that a periodic review would always find that there is still a need to continue to hold a person. It's not like there's no precedent for our government to conclude that some members of an anti-US terrorist group no longer pose enough of a threat to continue to detain them, even thought the initial detention was justified. See also the former South African government w.r.t. Nelson Mandala.

[[The cause of justice is furthered by treating people justly.]]

In the long term, yes. If, however, Obama doing the right thing leads to another Republican take-over of Congress, how does that further the cause of justice, exactly?

============

BTW, Gary, for any of your "outside agencies coming into an occupied territory", if they were caught and convicted, they should be punished accordingly. "But they were fighting the Nazis!!!OMG!!!" does not strike me as the primary objection to the rule.

"'But they were fighting the Nazis!!!OMG!!!' does not strike me as the primary objection to the rule."

Yes, we should definitely condemn premature anti-Nazis, and premature anti-fascists. What were they thinking?

(The Flying Tigers, incidentally, weren't fighting Nazis; the Abraham Lincoln Brigade was doing so only very indirectly; they were merely fighting fascists.)

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