Indefinite Detention

by hilzoy

From the Washington Post:

"Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said. (...)

Under one White House draft that was being discussed this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system.

Such detainees -- those at Guantanamo and those who may be captured in the future -- would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge."

This is a very puzzling article. It has some good news: for instance, that Obama has rejected the idea of national security courts. This is good: the idea of trying to construct an entire new set of courts, all of whose procedures could be litigated until eternity, is crazy, and why we need a new court system has never been adequately explained. If the administration has rejected that, that's good news. 

Then there's this: 

"One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.

"Going forward, unless it's an extraordinary case, you will not see new transfers to the U.S. for indefinite detention," the official said."

Ken Gude of the Center for American Progress comments:

"Congress has already approved traditional law of war detention in the Authorization to Use Military Force of 2001. The Supreme Court sustained military detention authority of those detainees captured in zones of active combat in 2004 in Hamdi v. Rumsfeld, so President Obama is on firm legal ground should he choose to limit military detention to those circumstances. (...)

This would be a significant shift from the Bush administration’s policy that swept into U.S. military detention virtually anyone suspected of terrorist activity captured anywhere in the world. It would restore the bright line between criminal and military detention, a crucial distinction to preserve not just in the United States, but also in other countries that look to or use the U.S. as an example."

That's not entirely right, I think. First, I'd like to see a very clear definition of "the battlefield", to prevent future reversions to Bush's doctrine that it was the entire world. This should not be left up to the discretion of the President. Second, this allows for exceptions to the rule that future detainees will be either held as prisoners of war, transferred to the US for trial, turned over to local authorities, or sent home. Those exceptions should not be "rare", or reserved for "extraordinary cases"; they should be nonexistent.

Finally, of course, there's that little bit about "going forward". Those detainees that the administration believes that it can neither try nor release could be held indefinitely, according to this policy. That is, of course, the elephant in the room. And it's just wrong.

In this country, we have what we call "laws". When you break a law, you can be tried, and, if the government can prove your guilt beyond a reasonable doubt, you can be sent to jail. If the detainees in question have not actually violated any laws, then it's hard to see why we propose to detain them. If they have, and we cannot prove it beyond a reasonable doubt, then we should ask: why not? 

If we don't have convincing evidence against someone, we should not detain him. If we do have such evidence, but it was obtained under torture and the person we tortured will not repeat it in court, then it is unreliable. If we have evidence, but revealing it would compromise "sources and methods", then we're in a pickle, but not an insoluble one. We might allow a judge to review that evidence in camera. We might decide that convicting this person is worth compromising some of our secrets. We could try to find more evidence that we could disclose. But we do not get to just detain someone indefinitely. 

No President should have that power. Period.

I sympathize with Obama's not wanting the Congress to pass legislation on this topic. They have been horrible on these issues so far, and I see no reason to think that they would change. (And, yes, Obama has been awful too, but the Congress has been even worse.) If he somehow has to obtain the power to detain people indefinitely, and it's legal to do it via executive order, fine.

I also don't envy him the politics of it. Obviously, if some released detainee commits an act of terror against the US, all hell will break loose. And the costs of that will not be purely political: people might not get health insurance, or we might be unable to act on global warming, if some released detainee decides to blow himself up in an American city. I wish that my fellow citizens were also moved by the wrongness of keeping people who might be innocent locked up without recourse, but apparently not enough of them are.

But that doesn't make it right. Obama does not have to do this. The rule of law is one of our most basic values. It underwrites the freedoms that we go on and on about, but are apparently unwilling to risk much of anything to preserve. 

Shame on him if he does this. And shame on us.

Comments

[John Spragge]

This puts me in mind of an exchange between Andrew Sullivan and Jeffrey Goldberg on Roger Cohen's work, in which Jeffrey Goldberg, a severe critic of Roger Cohen, writes rather hotly to Mr. Sullivan:

Roger Cohen in no way "saw this coming." In fact, he made a name for himself internationally as one of the leading Western apologists for Khamenei and Ahmadinejad, arguing that the regime was substantially benign and that engagement with these murderers was practically a moral necessity. He saw nothing coming, nothing at all.

It seemed to me, reading this, that Mr. Goldberg missed the point: a distinction between the "people" and the "regime" of any country will always remain somewhat artificial. All countries, I believe, have the same proportion of vicious, evil people, and some fraction of vicious, evil people will make obsessive efforts to get into power. The political system of any country will affect this desire: obviously, religious fanatics will find it easier to get into power under the system that exists in Iran than they would in the American or Canadian systems. But the final word, the final choice always rests with the people.

That explains why we never quite credit the argument that blames the evils of Nazi Germany exclusively on Hitler and his inner circle, and casts the vast majority of Germans as victims. Certainly, Hitler had German victims; he also had plenty of collaborators outside Germany. But Hitler and the Nazis could not have committed their crimes without the acquiescence of the mass of the German people. Likewise, the limits of what the Iranian clerics can do will depend, in the end, on what the Iranian people will put up with.

And the amount of change President Obama can deliver will depend on how far the American people will agree to trust hope over fear, courage over cowardice, and principle over narrow self-preservation.

[Ben Alpers]

And the amount of change President Obama can deliver will depend on how far the American people will agree to trust hope over fear, courage over cowardice, and principle over narrow self-preservation.

Broadly speaking you're of course correct. Leaders, especially in a democracy cannot simply do whatever they want.

But they can lead and they can move opinion. They have real and significant choices to make, for any of which sufficient public support can be found.

And whatever narrow majorities may exist in some polls for some policies that violate the rule of law, there is still a sufficient base of support for the rule of law that a president has plenty of political ground on which to return to it....should he choose to do so.

The bottom line here is that, as Bob Herbert wrote a couple days ago, "Policies that were wrong under George W. Bush are no less wrong because Barack Obama is in the White House." And policies such as those outlined in the WaPo article are simply dead wrong.

The Post article, as others have pointed out, does not describe settled policies; it's a trial balloon. The right response is not to parse the policies described in it and find silver linings, bits that are better, bits that are worse. The right response is to work to shoot it down.

And failing to shoot it down--failing to say, simply, no, this is unacceptable under any circumstance--will give those in the Administration who fear the rule of law added evidence that they have the political ground on which to continue their chosen authoritarian policies.

In short, this is an unfortunate post on a crucial issue.

[Ben Alpers]

Rereading the post, I may have been a tad harsh on hilzoy's post, which eventually rejects the trial balloon forthrightly.

I just don't think it's time to say "it could have been worse." We don't have that luxury.

[John Ballard]

There are parallels here with several other issues which conflate morality, law and politics. (For me, the what is legal and what is moral are the bricks, and politics is the mortar.)

Capital punishment, war, abortion, same-sex marriage, gambling, substance abuse and a string of other topics fall into the same discussion when seen through the different lenses of what is legal versus what is moral.

Legal and moral are not congruent. Hence the saying "If men were angels there would be no government." For that reason, politics trumps both until common ground can be found for reconciliation. The alternative is tyranny, either by one or a few, or what deTocqueville called "tyranny of the majority."

I am in complete agreement with your argument in the same way that I find virtually ALL abortions to be morally reprehensible. But as in the case of abortion, I come away from the page knowing that when all is said and done the only truly moral resolution is that enough people choose that course, not that they be compelled to do so by law.

In the case of indefinite detention, as you correctly stated, no one SHOULD have that power. But the tragic reality is that many already do, both inside and outside our compass of control. Let us argue, fight and advance the causes of that and all other expressions of moral choice, knowing that in that construction the word "choice" must eventually trump the word "moral."

I must remind myself often since the election that Barack Obama, for all his exemplary qualities, is a politician first and foremost. Politics is said to be the art of the possible, and at some level, even though I think his moral judgments are identical with ours, his assessment of what is politically feasible drives him in a different direction.

[wj]

I think it helps to get a handle on "indefinite detention" if you call it what it really is. Sometimes, it is a matter of "guilty until proven innocent" -- we know you did something illegal/bad, but we can't quite prove it beyond a reasonable doubt in court. But in an awful lot of cases it appears to be a simple matter of "preventative detention" -- we think you might do something illegal/bad if you were not detained. (And how likely that "might" is appears to be pretty flexible.)

I don't care for either one. But making clear just what is being done makes it harder for those advocating "indefinite detention" to justify their preferred course of action.

[jonnybutter]

Barack Obama, for all his exemplary qualities, is a politician first and foremost.

Excuse me, but I am tired of this naive and misleading juxtaposition. Every president, every elected leader, is a politician, and if they are successful, they are politicians 'first and foremost'. 'If men were angels', we wouldn't need politics or politicians, but since we aren't, they aren't. Politics is the medium we have, like it or not. I don't mean to single out hootsbuddy and his/her otherwise thoughtful comment - this sort of thinking is widespread, and it's self defeating. It's like saying any ends do or don't justify any means, or that someone does have 'an ego' (bad) or does not (good). It's not just sloppy wording, it's sloppy, misleading thinking. Someone with no ego is extremely unhealthy, mentally; the whole point of a ends and means question is deciding *which* means justify *which* ends; and show me a politician who treats politics as an afterthought, and I'll show you a very bad, ineffectual politician.

That being said, I's assert that Obama is often too 'cautious' (cowardly), but I wouldn't ascribe that to his being too good a politician, but rather to his not being good enough. It is the inferior, and less effective, politician who is stingy with his political power, and I think Obama is kind of like that; like money, sometimes you have to spend it to make it grow - it often drains away whether you spend it or not.

I think it was Sebastian who, in another thread, made a fine, succinct assessment of Obama: that he advocates some liberal policies and has a conservative temperament. I think that's right as far as it goes, but don't see how the two are discrete from each other. In fact, Obama is a pretty conservative person, which was always my complaint about him. He will get a lot of good things done, but, alas, he is not a 'new' kind of Democrat (or politician), but rather very much the old kind.

[Nell]

And shame on Dafna Linzer, for passing on unchallenged lies like this:

"Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said. Such an order could be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should be prosecuted or released.

That second senence is Linzer signaling skepticism, but far better would have been "...but the official declined to name any civil liberies groups that have encouraged such an executive order."

[Alex Russell]

Politics is said to be the art of the possible . . .

I have always had a big problem with the usages of this phrase. I suppose it can make some sense as a consoling comment after some political result has come out ("look, you must realize...") - but I think I have seen it more often used beforehand or duringhand, as a sorting suggestion for what allegedly important ideas "are" "really" important.

I hate this. Really this isn't merely repeating the maxim; something new is being said: "ideas are the art of the possible." (And then, presumably, after the fact you can compare the accordingly-sorted ideas to the accordingly-judged political output, find an increased level of congruence, and find in this some complacent reassurance that realistic things are in fact being reflected well in our political processes, and that the game as a whole is on the beam, realistically considered... as opposed to in light of all those unrealistic comments and notions.)

What is allegedly realistic in this "politics is the art of the possible" sense does not meaningfully trump ideas or ideals or concerns about what the actual right or necessary choices are - nor dim them to background, nor turn down the contrast on them - or anything. It does not make frivolous or meaningless suggested ways in which, for example, "indefinite detention" might really and for true bite us going down the road, if politics does pass it through.

Short application here: No, hilzoy shouldn't have considered and factored in "politics is the art of the possible" more (in what way?) when thinking about how to react to this (and presumably then curled up and gone to sleep).

(This is the sort of thing that carries residual heat for me: the most recent example would be overlong to go into, but recently I read an impassioned explanation and advocacy of a point in another area, a sound or at minimum valid point and one with significant potential consequences... responded to by a bland and pleasant commenter, who I found impossible to distinguish from a concern troll, who basically said, "Easy, easy. I agree with you about this, personally, but no one is going to take up this idea - people are selfish, short-term creatures. Forget about this tack and find a different notion to talk about. Politics, after all, is the art of the possible..." No other tack adequately addressed the same point, or had the same mix of consequences... but that seemed entirely irrelevant to Kaa.)

[Joe]

"entire world"

Sen. Lindsey Graham was sure to get some Obama nominees on record suggesting that is exactly where the 'battlefield' is.

The lower court ruling in the Padilla case (good law in the 4th Cir.) underlines it is open to question if "on the battlefield" only applies in this context to battlefield captures. Clearly, loads of people now detained were not captured in such a fashion. Hamdi might be interpreted that way, but one problem with the plurality opinion is that it need not be.

One way to avoid a bad law is to take part in the writing. And, if it does not meet minimal levels, say you won't sign it. I doubt progressives (there being some true ones) in Congress will override it.

But, Obama might rather have the discretion to act via executive order. His record so far on that level has been a tad mixed, and I'm wary about it. Actually having "law" on the books might just provide some important checks that another path will not offer.

[hilzoy]

Alex R (quoting someone else): "people are selfish, short-term creatures. Forget about this tack and find a different notion to talk about. Politics, after all, is the art of the possible."

What always bothers me about this is that it makes it sound as though what "people" think is some sort of distant phenomenon that we just observe, like the motions of the planets. Whereas we are of course some of the very people in question, and can actually do something about this.

It's like the multiple-person version of saying: well, it's unrealistic to expect me to stop robbing banks; I'm just a bank-robbing sort of person. -- It might be right to say that about someone else, someone over whom you had no influence. But never about yourself.

[anon]

"If we do have such evidence, but it was obtained under torture and the person we tortured will not repeat it in court, then it is unreliable."

The problem is that under current law, if the govt tortures you, then the indictment gets dismissed, period. It isn't just a question of excluding the unreliable evidence; it's a due process violation under the shocks-the-conscience standard, and the remedy for that is dismissal.

So I imagine the problem is that the govt may have very strong evidence apart from torture that a detainee is guilty, but they also tortured them, such that a federal judge would dismiss the indictment.

I think the govt just has to bite the bullet if that happens, and the detainee goes free, unfortunately. It's the prior administration's fault for having fucked things up so badly.

[bob mcmanus]

Barack Obama, for all his exemplary qualities, is a politician first and foremost.

Obama did not make a solemn oath before God, Country and World to get re-elected, keep his polls high, or pass healthcare.

[hilzoy]

anon: if the person is prepared to repeat it in court, it's OK (unless the person is actually being tortured in court, or there's evidence of coercion etc.)

[Turbulence]

anon: if the person is prepared to repeat it in court, it's OK (unless the person is actually being tortured in court, or there's evidence of coercion etc.)

Do you mean legally or morally? I can't imagine how it could be morally OK. Once you torture someone and they confess something, there is always the implicit threat of more torture should they ever withdraw their "confession". I can't imagine how any court could trust self-incriminating testimony made by someone who has been tortured.

I mean really now, if an American pilot was captured by enemy forces, tortured, and confessed to all manner of crimes, would anyone believe his confession if he repeated it in a courtroom?

You can never untorture people which means that you can never trust incriminating statements made by torture victims: there is no way you can reliably remove the implicit threat of further torture.

[novakant]

We tend to forget that the vast majority of politicians are interested in power and themselves above all else.

[hilzoy]

Turb: I meant admissible in court, not morally OK.

[Turbulence]

But how could it be admissible in court? I'm sure there's no statute that says you can't accept incriminating testimony from someone who has been tortured to produce that testimony, but don't judges have a general obligation to bar testimony they think is not credible? How can any judge assume testimony that someone has been tortured into giving in the past is credible?

[Nell]

Ben's point in an early comment above is made even more urgent by the fact that Ben Wittes and other apparatchiks at Brookings and elsewhere are working on concrete proposals for preventive detention.

These kinds of executive orders and/or legislation don't come out of the air; they start from working papers that soulless, lawless, Constitution-shredding functionaries like Ben Wittes are well compensated for developing.

It is and will always be too soon to start looking at silver linings and ways in which these hypothetical and soon-to-be-real proposals might be worse. They are wrong. They violate the most fundamental principles of the rule of law.

[Witt]

Amen to all of the good comments above, especially the point that "people" are US. Today I wrote two letters to the editor on this issue. It's important to get out in front of this, and condemn it BEFORE it happens.

Also, on the topic of whether "the govt may have very strong evidence apart from torture that a detainee is guilty" -- I used to think this could be possible. By now, there have been so many cases in which there was absolutely no proof that I'm ready to say it's *theoretically* possible but never in the 21st century U.S. actually true.

[novakant]

The whole framing of this debate is utter nonsense:

It presumes that there are people that are so incredibly dangerous to the US, that they cannot possibly be set free. Now I'm not denying that there are dangerous people out there, but we release murderers, serial rapists, child molesters and whathaveyou because of minor technicalities every day and the world hasn't gone down in flames yet. And the people who might actually blow up a shopping centre or something are likely some disenchanted, radicalized youths we have never heard of.

[Hartmut]

And the people who might actually blow up a shopping centre or something are likely some disenchanted, radicalized youths we have never heard of.

Or 'patriots'* that were shielded from prosecution because of ideological affinity or because the idea that these upright people could be terrorists does not vibe with the 'not all Muslims are terrorists but all terrorists are Muslims' dogma.

*especillay Kristian(TM) ones

[stonetools]

I think the govt just has to bite the bullet if that happens, and the detainee goes free, unfortunately. It's the prior administration's fault for having fucked things up so badly.

It is the KSM problem here. Let's face it, the USA is never going to release the man who blew up the Woprld Trade Center and killed 3000 Americans . If Barack Obama did that, he would be signing his political death warrant, no matter what his reasons are. Its not even clear that it would be morally right to do so, given that KSM could return to the battlefield and kill even more Americans.

In the initial post, hilzoy noted:

And the costs of that will not be purely political: people might not get health insurance, or we might be unable to act on global warming, if some released detainee decides to blow himself up in an American city.

I think we should understand that such a released detainee just doesn't blow himself up: he also blows up up innocent Americans who didn't sign on to die for a point of principle. Hilzoy's formulation gracefully disguises this.
But the President has sworn a solemn oath to protect just those innocent Americans, which is why he has reserved to himself this power to keep KSMs from returning to the battlefield.
Maybe there is a way to make this stuff legally OK , by re-writing the POW definition to include a KSM type. Then we get to detain him for as long as we consider ourselves in a state of war. That probably just kicks the can down the road in a KSM type case, but hey, its better than releasing such people, which certainly shouldn't be done at this time.

[Turbulence]

Let's face it, the USA is never going to release the man who blew up the Woprld Trade Center and killed 3000 Americans . If Barack Obama did that, he would be signing his political death warrant, no matter what his reasons are. Its not even clear that it would be morally right to do so, given that KSM could return to the battlefield and kill even more Americans.

We are a nation of cowards, so I guess you're right.

I still don't know why any rational person fears KSM returning to a battlefield. He's not much of a soldier. He's an old guy in very poor health. Really, I think the US Army can take him. He can't do any damage by himself and no terrorist organization will ever let him get near operational planning since he's been compromised.

But your analysis is flawed in another way as well. By focusing on the risks of dying from a released KSM's magical terrorism, you ignore the risks of dying from government overreach. When we empower the government to desecrate the law by holding people indefinitely with no evidence, we guarantee that the government will ruin some American lives for no reason. You have to count those lives in the ledger of your cost-benefit analysis. We abandon the rule of law so that we might save some lives but doing so costs us lives as well. The law is a safety mechanism that keeps the machine of state from devouring us.

I think we should understand that such a released detainee just doesn't blow himself up: he also blows up up innocent Americans who didn't sign on to die for a point of principle.

Sure they did. Americans choose to live in a nation of laws that by necessity cannot offer perfect safety. As novakent mentioned above, because we (supposedly) adhere to the rule of law, we release murders and rapists all the time. Any American who doesn't like trading a tiny bit of enhanced risk for the rule of law is welcome to leave the country for one where such trades don't happen. I'm sure Saudi Arabia or Turkmenistan would be more to their liking.

But the President has sworn a solemn oath to protect just those innocent Americans, which is why he has reserved to himself this power to keep KSMs from returning to the battlefield.

Really? And which oath would that be? Because the oath of office that I know of has no such requirement. The President does not swear to protect Americans but to defend the Constitution.

[Phil]

Let's face it, the USA is never going to release the man who blew up the Woprld Trade Center and killed 3000 Americans .

Uh, don't we have to catch Osama bin Laden before we have to make decisions about releasing him?

But the President has sworn a solemn oath to protect just those innocent Americans,

He most certainly has not.

Maybe there is a way to make this stuff legally OK , by re-writing the POW definition to include a KSM type.

Aside from the ex post facto implications here, what, exactly, is a "KSM type?"

Then we get to detain him for as long as we consider ourselves in a state of war.

Just what I want: A country that considers itself in a perpetual state of war just so it doesn't have to release "KSM types," whatever the hell those are. I hope that our perpetual state of war doesn't decide that "stonetools types" are also POWs for some reason.

[stonetools]

I still don't know why any rational person fears KSM returning to a battlefield. He's not much of a soldier. He's an old guy in very poor health. Really, I think the US Army can take him.

I don't know why any rational person should fear Osama bin laden . He is not much of a soldier. He is an old guy in very poor health. Really, I think the US Army can take him.

I don't know why anyone should fear Mohammed Atta. He is not much of a soldier. He is just an Egyptian exchange student. Really, I think the US Army can take him.

H'mmm...

I will agree with you about the wording of the oath, but Obama ( and every President) that I know of, believes that he has a duty to protect the lives of innocent Americans. Its an implication of his role as commander in chief of the armed forces. I think that most Americans want their President to protect the lives of innocent Americans, but maybe I've got that wrong too.

Just what I want: A country that considers itself in a perpetual state of war just so it doesn't have to release "KSM types," whatever the hell those are. I hope that our perpetual state of war doesn't decide that "stonetools types" are also POWs for some reason

I can tell you that stonetools types don't go around declaring war on Americans, plot to crash planes into buildings, mass murder Americans, or cut off journalist's heads, so I doubt that the US military is concerned about stonetools types.

But your analysis is flawed in another way as well. By focusing on the risks of dying from a released KSM's magical terrorism, you ignore the risks of dying from government overreach. When we empower the government to desecrate the law by holding people indefinitely with no evidence, we guarantee that the government will ruin some American lives for no reason. You have to count those lives in the ledger of your cost-benefit analysis. We abandon the rule of law so that we might save some lives but doing so costs us lives as well. The law is a safety mechanism that keeps the machine of state from devouring us.

This is fine rhetoric, but misses the point that all countries who adhere to the Geneva Conventions( a legal instrument) can hold people deemed to be enemy combatants for as long as they deem a state of war exists.
IN the case of a KSM or indeed any detainee, they are not actually "lawful combatants" under the Geneva Convention , so it is unclear what rights he or any other detainee has, other than maybe an eventual right to trial. Indeed, if anything is clear it is that the President can completely and faithfully uphold the Constitution and the rule of law in every particular and still detain non-citizens indefinitely by executive order.Certainly, I think that most Americans are OK with having tribunals to determine whether the detainees are dangerous or are truly innocent. They are not OK with letting the truly dangerous out, and the President has to take note of the American people's wishes. Now you may think that KSM is harmless, but I think you are in a minority on this.

[Phil]

I can tell you that stonetools types don't go around declaring war on Americans, plot to crash planes into buildings, mass murder Americans, or cut off journalist's heads, so I doubt that the US military is concerned about stonetools types.

Is that really a risk we can afford to take? The stonetools types of which we are aware have already declared themselves to be in favor of a perpetual state of war and dedicated to the gradual subversion of our Constitution. Who knows what shenanigans they might get up to in the future?

[Turbulence]

I don't know why any rational person should fear Osama bin laden . He is not much of a soldier. He is an old guy in very poor health. Really, I think the US Army can take him. I don't know why anyone should fear Mohammed Atta. He is not much of a soldier. He is just an Egyptian exchange student. Really, I think the US Army can take him.

Well, Atta is dead, so I'm really quite certain that the US Army can handle him. Is there a record of people who have managed to overpower the US Army despite being dead for 7 years? As for Osama, (1) he's not in custody and (2), do you really think the US government couldn't manage to prosecute him in court without torture?

I will agree with you about the wording of the oath, but Obama ( and every President) that I know of, believes that he has a duty to protect the lives of innocent Americans.

So that means the President should order the immediate imprisonment of all accused criminals who were found innocent. Right? I mean, the President has a duty to protect the lives of innocent Americans and obviously, letting accused criminals roam the streets endangers innocent Americans.

I can tell you that stonetools types don't go around declaring war on Americans, plot to crash planes into buildings, mass murder Americans, or cut off journalist's heads, so I doubt that the US military is concerned about stonetools types.

If the government can hold people indefinitely without justifying its detention in court, then there's no reason they couldn't imprison you for the rest of your life even though you're not a threat. They'll just say they have reason to believe you're a terrorist and lock you up.

[Nombrilisme Vide]

This is fine rhetoric

The same could be said of your justifications for indefinite extralegal detention, though I'll confess I'd be hardpressed to characterize it as "fine".

all countries who adhere to the Geneva Conventions( a legal instrument) can hold people deemed to be enemy combatants for as long as they deem a state of war exists.

You are arguing in decidedly bad faith here. You know full well that A) the US is not in a legal sense at war, and B) that the "war" that it is engaged in is intentionally nebulous in its scope. Both of these point to your call for detention for the duration of hostilities to be nothing more than a roundabout way of calling for indefinite detention. Not that you've been coy on this point, but still.

IN the case of a KSM or indeed any detainee, they are not actually "lawful combatants" under the Geneva Convention , so it is unclear what rights he or any other detainee has, other than maybe an eventual right to trial.

Actually, their not being "lawful combatants" makes fairly clear what rights they have: they are protected parties, and hence subject to treatment/prosecution as civilians:

Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.

-ICRC Commentary on the 4th Geneva Convention

"Unlawful enemy combatants" as a legal limbo status is a risible fabrication of the finest legal minds of the second Bush administration. It blithely flies in the face of the text and legal precedents arising from a half-century of application of the Geneva Conventions.

[John Ballard]

Interesting thread. Many good comments but little or no mention that "legal" (which includes "duty") and "moral," though usually parallel, are sometimes irreconcilably incongruent.

Also, the reason I oppose many practices (capital punishment and torture come to mind) is not whether or not they "work", but that they make ME a perpetrator. Dying for a principal and killing (or torturing) for a principle are very different behaviors.

[James ~ Austin,TX]

"If he somehow has to obtain the power to detain people indefinitely, and it's legal to do it via executive order, fine. I also don't envy him the politics of it. Obviously, if some released detainee commits an act of terror against the US, all hell will break loose.

err...the devil GWBush faced the same politics as Obama. Was his heart in the right place as well?

[Jesurgislac]

Hilzoy: anon: if the person is prepared to repeat it in court, it's OK (unless the person is actually being tortured in court, or there's evidence of coercion etc.)

No, it's not. It does not matter how a torture regime convinces a suspect to repeat their confessions in court: the moment the detaining power uses torture to extract a confession, that confession should not then be used against the suspect in a court of law. Give the torturers some hope that it will - if they can find a way of convincing their suspect to repeat it - and you will never see an end to the torture of prisoners.

From 6th July 2003:

The two British terrorist suspects facing a secret US military tribunal in Guantanamo Bay will be given a choice: plead guilty and accept a 20-year prison sentence, or be executed if found guilty.

American legal sources close to the process said that the prisoners' dilemma was intended to encourage maximum 'co-operation'.

Both the terrorist suspects here being "invited" to confess, Moazzam Begg and Feroz Abbasi, have since been released, thanks to diplomatic pressure from the British government.

Moazzam Begg on Guantanamo Bay:

There is a strange practice in Guantánamo Bay that exists to this day – several years after my release. According to the established military protocol lower enlisted troops must stand to attention and salute passing officers with the words: "Honour bound!" The unwavering reply to this is meant to be: "To defend freedom!" I still recall several of my guards telling me, not surprisingly, that they found this whole performance quite embarrassing. And yet, at the entrance to each of Guantanamo's seven camps, there is a plaque that reads: "Honor Bound to Defend Freedom".

And in the US today, to Barack Obama and others, that "honor" includes the defense of torture and extra-judicial imprisonment.

[Gary Farber]

"And yet, at the entrance to each of Guantanamo's seven camps, there is a plaque that reads: 'Honor Bound to Defend Freedom'."

There's a play about the contradictions in this motto, incidentally. (Originally produced in London.)

"And in the US today, to Barack Obama and others, that 'honor' includes the defense of torture and extra-judicial imprisonment."

This is an example, also incidentally, of the way you take implications that you feel (however rightly or wrongly) must be implied, and attribute them as actual facts about what other people think. This is not actually as useful a rhetorical device as you seem to think it is, I suggest, because implications are not the same as facts. You make mind-reading claims.

If you said something like "to all appearances," you'd be on perfectly sound ground. But what you wind up doing instead is making claims of fact about what people think that can't be proven, and are in fact arguable (even if you may have a fair or good case). And that becomes the focus of, I suggest, more than one reader, rather than the actual case you, I would think, actually want to make. It's a distraction from getting your point across, not a help.

I'll try not to repeat this point; I just wanted to finally point out a single example of this habit of yours, in the vague hope that it conceivably might actually be something you'd consider.