This, if true, is indefensible:
The Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges by a U.S. military commission.
Jeh Johnson, the Defense Department’s chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.
Like the Bush administration, the Obama administration argues that the legal basis for indefinite detention of aliens it considers dangerous is separate from war-crimes prosecutions. Officials say that the laws of war allow indefinite detention to prevent aliens from committing warlike acts in future, while prosecution by military commission aims to punish them for war crimes committed in the past.
Mr. Johnson said such prisoners held without trial would receive “some form of periodic review” that could lead to their release.
Team Obama should get ripped to shreds for even floating this.
kim
AGREED.
Persia
Agreed. It’s disgusting.
DougL (frmrly: Conservatively Liberal)
Agreed. Holding people indefinitely is flat out wrong, end of story. Bush did it and was vilified for it, President Obama can expect no less.
Comrade Mary
WTF OBAMA?
Gus
I’d like to think I voted for Obama without blinders. I had no illusions that he would be a transformational president like FDR. I did believe he would be better on this issue than Bush, though. I won’t make that mistake again.
Ari
Agree with above, though any article in wsj that includes the phrase “Like the Bush administration, the Obama administration” might be taken with at least a tiny grain of salt.
SGEW
I keep hearing bits and pieces about the debate going on between Obama’s various advisors (in the OLC, the DOJ, the DOD, etc.) over detention policy – can you imagine what those arguments are like? Sandy Levinson on one side (I imagine) and Jeh Johnson (and others, I suppose) on the other. I wouldn’t be surprised if there are more than a few resignations over it once a decision is made.
And that decision, once made, had better be the right one (i.e., no preventative detention motherfuckers!). ‘Else . . . I don’t know what. We’ll all be really sad, I guess.
Shit.
Punchy
I really have no prob with this. I’ve seen Independence Day, and I know what these creatures are trying to do. See also: ET, and Alf.
Bob In Pacifica
I have written that the President of the United States no longer has control of the military. I’ll so far as to say that the military-industrial complex grew too big to control in WWII, Eisenhower warned about it after the Paris peace talks were sabotaged by the CIA.
The JFK assassination was the exclamation point on the matter. Since then the Presidency has been held by people with similar views of the security state, but when they step out of line they are removed. FAMILY OF SECRETS lays out a good case that the CIA staged Watergate to purge Nixon, then replaced him with a member of the Warren Commission. Carter, who wanted to reform the CIA in a much milder way than JFK, was sabotaged through the October Surprise machinations.
So when people complain about what Defense Department lawyers are doing and assign it to Obama’s wishes, well, it may be Obama’s wishes or it might not be Obama’s wishes. His wishes are irrelevant. It’s not a political problem because the people controlling this are not elected.
J.W. Hamner
So seriously… you have a terrorist in custody who has not done anything you can convict him on yet, but you have ample evidence he is a terrorist bent on blowing shit up… so you let him go and wait for him to blow said shit up so that you can put him in jail?
I’m not sure I follow.
Steinway1957
This is just really, really wrong, and it makes me wonder who really runs things.
Is there a core group of people at CIA and DOJ who basically do what they like from administration to administration?
Is Obama caving to them? Or, worse, not caving, and he personally agrees with this policy, if for no other reason than national security?
Is this about political appearance — needing to be seen as strong?
Is this CYA to cover for people who practiced this policy previously and don’t want to be exposed for the mistake it was and is?
I wish I knew a lot more about how all this works.
The Grand Panjandrum
The problem does not lie in the fact that you can try someone for war crimes and also base their continued detention on the separate issue of being a prisoner of war. That is a valid argument. Theproblem arises from the simple fact that the so-called “war on terror” is rather vague and implicitly guarantees indefinite detention if the administration so desires.
anonevent
I am curious how any of you think POWs should be treated? I’m not talking about those that can be released back to their home country, or even those that should be released, but their home country will not take, but actually those, since we are at war, who are POWs.
Zifnab
I’m not sure what Obama should do here. If you’ve got a guy and you know he’s dangerous, but all your evidence is tainted by false confessions under torture and Bush DoJ malfeasance, what do you do with the guy?
It’s like the Ted Steven’s case writ large. The guy was dirty, but the prosecutors royally screwed the pooch. What do you do with these dangerous men? Release them and let them organize some future attack? Which country would even be willing to take them in?
It’s an absolute mess, but there aren’t a lot of good options. What is Obama supposed to do with these people?
Chinn Romney
You deport him. And make sure you don’t let him back into the Country.
What you’re not following is that we are a Country of Laws. Turn off ’24’ hammer and take some time to read the Constitution. You act like there’s only way to deal with this problem, and that this one way is actually effective. Neither part of that is true, so let’s get back to those ideals we supposedly live by.
This is just one more log on the fire. We do need a serious Republican candidate. Obama is not living up to any of his promises, and yet what are our alternatives?
SGEW
Btw, Marc “Don’t Blame Me, Blame My Sources!” Ambinder has a post up about the internal debate.
Zifnab
@Gus:
:-p Even FDR wasn’t a transformational President like FDR.
debit
@Zifnab:
While I understand it’s a complicated situation with no easy solutions, we hired Obama to clean up Bush’s mess, not to just sweep it back under the rug.
Fulcanelli
Obama’s backpedaling on so many of the strongest points he ran on during the campaign demonstrates just how little control and influence a President actually has over the government it seems. Between the lobbyists, the military brass, Congress and even (shudder) the Press there’s no doubt that Washington is hardwired for right wing rule and after almost 28 years I’m not surprised. Obama needs to stop being so concerned about compromise with people who would kill him in his sleep if given half a chance. Go Big or Go Home Barry, because you won’t get a second chance.
Zifnab
@Chinn Romney:
Deport him where? I don’t know any country is eagerly anticipating the arrival of a wave of bomb-belt wearing immigrants.
asiangrrlMN
Fuckity-fuck-fuck-fuck.
That is all I have to say about this. For now.
Comrade Stuck
What Obama should do, is to separate those being held that are prosecutable as terrorists, or people who have violated the rules of war and there is presentable evidence to prove this, from those who were not,/ or were with tainted evidence, and immediately classify those people as POW’s. Then there are specific protocols for detention and for those with POW status a type of hearing to determine if they actually were justifiably captured and imprisoned. If they were not, they should be scheduled for release. If the hearing reveals they are combatants in OBL’s jihad war, AND are still desiring to kill Americans, then they should be kept in prison, as POW’s with all those protections called for in the GC, until such time the Jihad is called off, or they renounce their intentions to fight.
There are a number of prisoners who are scheduled for release, but no country will take them, which poses a different problem. Obama is wrong to just blanketly say we will keep the status quo of Bush’s folly. He needs to shit or get off the pot, and make the needed changes.
moe99
This is so depressing. Who is now the General Counsel at Dod? and why are the military/security branches of govt seeming to wield such outsize influence on this?
edit: Nevermind. Sigh. It’s Jeh Johnson and I sort of see why he has such influence on Obama.
http://www.dod.mil/dodgc/gc_bio.html
But who in Dod got to him? This is odd.
ET
Agreed.
But am I the only one that wonders what is going on behind the scenes and what the exact nature of the problems Bush & Co left behind? I get this nagging feeling that because of the policies, implementation, unintended consequences, etc. of Bush & Co, that the window of options left behind for the next president no matter who that was, was not exactly great. Of course that is not to say that the Obama administration shouldn’t make a tough (or politically problematic choice). Still I wish we (or at least me) knew more of the behind the scenes from Bush & Co as well as Obama administration’s actions as well as what was really going on I feel like I am making judgments with only 20% of the information I should have.
Little Dreamer
It seems to me that there are still a bunch of Bushies leftover in the Pentagon and Obama hasn’t figured out that their loyalty is not worthy of him.
I am also disappointed. This is just wrong.
We would create more enemies by continuing to hold innocent people than we would to let them go.
I guess “9/11 Changed Everything” is still the motto of the day. Sad, very sad.
Mojotron
with? terrorism? drugs?
poverty?
If you want to detain people as prisoners of war, get congress to declare war.
Little Dreamer
For all intents and purposes, I think that person is Dick Cheney.
J.W. Hamner
@Chinn Romney:
No, I appreciate that it’s a difficult issue with no easy answers, and do not reflexively go “WTFOBAMA!?” if it’s written that he agrees with some aspect of Bush policies.
Ash Can
This story ain’t pretty, but I have a hard time believing that Obama and the people on his team are as venal and sadistic as Bush and his crew. On the other hand, I do suspect that, as policy/legal wonks, Obama and his crew are susceptible to getting bogged down in, well, wonkage. And this leads me to worry about what the DFHs were saying a year or two ago, about Bush fouling up the system of government so badly that some of the mess would be “permanent.” I put that word in quotation marks because I don’t believe any of Bush’s changes are truly permanent; anything can be fixed through the various kinds of action the government can take. Such fixes can take an awfully long time, though, especially if human beings are suffering in the meantime.
This is a long way of saying that I’m not familiar with the legal elements of this issue, and feel that the likelihood of this being a matter of Obama’s crew navigating through a legal minefield is much greater than the likelihood that Obama is indifferent or vindictive toward the prisoners of Gitmo. Where I agree with everyone here is that I’d like to have seen this whole mess resolved yesterday, if not sooner.
Lee from NC
@Fulcanelli:
This.
He continues to backpedal or hamstring himself on quite a few issues. I know it’s not PC of me to say so, but this is only one of several issues (**cough DADT cough cough**) where he just seems to have lost his way from the person he was (or that I believed he was) during the campaign.
Cat Lady
@ET:
No. I often imagine that the package Bush left on the desk for Obama on inauguration day said something to the effect of ha ha ha ha ha, enjoy your inauguration, because you’ve got a nice family there and it would be a shame if something happened to them.
I don’t like this turn of events at all. I want the DFHs to win once and for all, but now I’ll take just once.
Brian J
Here’s an interesting defense of this topic from Mark Kleiman. I wouldn’t say I necessarily agree with it, but he does raise some good points:
Bill H
Um, you swoop a guy off the street in, say, downtown Islamabad, throw him in the back of an airplane, take him to Afghanistan and put him in a camp and label him a “Prisoner of War” do you? What about the guy you picked up in Northern Italy?
We are not “at war,” dude, no matter how much the neocons and the “new neocons” currently in office want to throw bombs around and play war. Congress “authorized the use of military force,” they did not “declare a state of war.” We are a military occupation in Iraq, and heaven knows what we are in Afghanistan; invader? But we are not at war with Afghanistan, we are just there to kill a bunch of people in their country. (And are frequently killing the wrong ones.)
In any case almost none of the people at Guantanamo were picked up even within the sound of a battlefield. Many were not even picked up by military forces, but rather by CIA and the like.
Obama promised to close Guantanamo and included in that promise was to “end what it symbolized.” To now say that he will continue the practice of detention without charges and, even worse, continue to detain even after having been cleared of charges is a clear breaking of that promise. He can put all of the lipstick on that pig that he wants, and it will still be a pig.
moe99
Ok, here’s my take on this and it’s going to be shorter than I would like b/c I have a brief due today.
Jeh Johnson, the GC of Dod does not appear (beyond his 27 month stint as AF GC in the Clinton administration) to have a military background. Obama does not have a military background. That puts both at a disadvantage when dealing with the military. No cred b/c they have not proven themselves in the only way that would give them cred with the uniformed members of DoD. You can get a pass if you are an R but not if you are a D. Unfair but that’s the viewpoint of the military. Things may have changed since I served as Special Asst to the General Counsel at DoD in the waning days of the Carter administration, but I doubt it.
So the way it seems to be played right now is that in order to establish their bona fides with the military, Johnson and by extension, Obama, are giving the services outsize influence on this issue.
Again, this opinion is coming from one who is in the peanut gallery these days, but that’s how it makes sense to me. I cannot believe that Obama would vitiate the rule of law for any other reason. And this is not a good reason anyway. Based upon my long ago experience, I would say to him “just stand up to the S-O-Bs. It’s the only way you will win even grudging respect from them.”
Comrade Stuck
@Ash Can:
I think Obama is just scared shitless that if he releases these people, and even one of them so much as kicks sand in an American’s face all hell will break loose. Especially if it were to happen in the US.
Whereupon immediately, the Mighty Wurlitzer will kick in with endless cable news segments replete with frothing wingnuts railing how the terrorist sympathizing stealth Muslim will cause you to die. And the show biz media will play it to the hilt for ratings. It’s an understandable fear, but Obama is being paid to make the hard choices, and risk the backlash to lead us out of the legal and moral quandry Bush has put us all in.
bystander
Cue Team Obama on state’s secrets and requests for the court to dismiss not on the basis that individual items of evidence are classified, but the whole case is classified; just because it is.
chopper
@J.W. Hamner:
if you have ample evidence he intends to attack the US then you should be able to convict him on some sort of conspiracy charge. if you can’t, then you don’t have very good evidence and deport his ass.
Brick Oven Bill
Kinda’ makes you think that all of that stuff he said on the campaign trail regarding FISA, public campaign finance, no new taxes for people making less than $250k, Iraq, Wall Street, torture, etc., was all about getting elected, and not about a leader’s view of governance.
Hey dere, don’t cha think? Wink ;)
Bill H
@Brian J:
It’s not clear that you understand the problem. If someone is captured on a battlefield shooting a weapon at us, he is a POW and no charges are needed. He is held as a POW until the conflict ends and certain rules apply to the method of his holding.
The problem is that in almost no cases did we capture any of these guys within miles of a battle field. We took them off of the streets of their hometowns because someone told us they were planning plots against us. Now we want to label them as “unlawful enemy combatants,” which is a brand new term that we invented in order to hold them without having to comply with the rules about holding POW’s.
But we have to prove that they deserve that term, since we don’t have a nice clear issue like them wearing uniforms or having been captured on a battlefield. Since we now find out we can’t prove it we are trying to relabel some of them as POW’s. As for the rest; well, some we will give “show trials” to like the Soviets used to do, some we will hold without trials at all, and as for the ones who get real trials and are found innocent – we’ll hold them indefinitely despite the verdict.
SGEW
Greenwald speaks his mind.
zaine_ridling
And that’s exactly why I proudly voted for Hillary. I knew obama was a fraud from the first minute. He who has accomplished nothing in life, i.e., had everything handed to him a la Bush, hath no convictions. This guy is in it for the money and the fame, folks. He’s not even bothering to defend his own campaign promises on healthcare, so why would he bother taking a stand for any particular constitutional right?
neff
@Comrade Stuck: I think you’re right that at least part of the issue is fear of what would happen if one of them is released and does something big. But it seems inevitable that they would more or less be under surveillance for the rest of their lives anyway, and if they try to give assistance to any other groups that could just be an intelligence goldmine. That’s the thing I haven’t heard anyone mention, the idea that we’d still be keeping tabs on the guys after they were released to wherever — I can’t imagine that that wouldn’t happen.
SGEW
@zaine_ridling: That is some ridiculous grade A bullshit right there. Thanks for the nonsense, really helps move the debate further.
someguy
@ Comrade Stuck – +1
I’m willing to consider the possibility that maybe Obama didn’t catch a bad case of Teh Evil upon taking office, but that perhaps some of the people other countries don’t want to accept might actually be really dangerous and awful and he doesn’t feel confident that they can be released without endangering Americans or others – Comrade Stuck makes the point about adverse political consequences, and maybe even a couple thousand deaths are insignificant in the long run, but a post 9/11-esque multi-trillion dollar hit on the economy would do grievous harm to a lot of people who a struggling to keep a household together as it is, and the security overreaction by Congress (in response to the shrillest of public demands) could do grievous harm to the Constitution (again).
Still, this shouldn’t be allowed to happen without Congress and the Court having a say in the matter. My beef isn’t with administrative detention of the criminally insane, which is what you’re probably talking about here; it’s with the argument that this is an inherent power of the presidency. The Executive probably should exercise discretionary power here and run an administrative process (comparable to the one required for EPW determinations) to review detention, but only Congress can authorize such detentions (due to the habeas issue) and it will have to be subject to court review. If the next Mohammad Atta is in custody, I’d really rather they keep him there – but not at the cost of our basic decency or laws.
Keith
Speaking of frustrating things, how about the one where you spend 5 minutes typing out a tome about how the GWOT isn’t a real war, and this is just political marketing with a dash of Kafka, but forget to type in your name before submitting only to find that after hitting the Back button, this particular site doesn’t keep the form data? DAMN YOU OBAMAAAAAAAA!!!!
Little Dreamer
@zaine_ridling:
Fuck off, opportunist. Obama is not in it for the money, he made more money before being President. He’s in it to help the nation recover from Bush, but, he got bogged down in having to deal with some serious shit and some of it is difficult to figure out.
shikomera
Really sad day for the US of A. In Kenya we used to have a Preservation of Public Security Act which allowed the President to detain indefinitely, any person deemed to be a threat to state security. As part of the law the only recourse was a periodic review by the Detention Review Tribunal which could only advise the President. As I recall, the members of Tribunal were some old retired colonial judges who slept through the proceedings.
Thankfully, under pressure from the US of A, that law was repealed. I wonder whether the US of A will be that shining light. Sad, really sad!
Leelee for Obama
These are all great posts, so I’ll just add my own humble two cents. What should we do with these guys? Obama didn’t detain them, he didn’t have them tortured, he’s stuck with them because the Bush Admin. thought they’d never have to leave office or always be replaced by anti-Geneva Conventionists. If they are released and they then blow something up, Obama will be held liable and that would be wrong. If they are sent to Country of Origin and they are released there, and then blow something up, Obama will be held liable and that would be wrong. If we shoot them, Obama will be praised by the likes of Cheney, and that would be wrong. It is a cluster-fuck that I cannot quite find a solution for. I always suspected Bush wasn’t so much dumb as cagey, and this situation kinda makes my point.
SGEW
@Leelee for Obama:
Join the club.
west coast
But someone is “at war” with us. One of the things I really dislike about knee-jerk reactions is that they’re thoughtless, and when shown to be thoughtless try to cling to sophomoric rationalizations of technicalities in order to justify themselves. Everyone does it, but that doesn’t make it a good way of thinking.
Al Queda has declared itself at war with us. IMO, if you can be shown to be a member of Al Queda we should be able to hold you without charges until such time as Al Queda is no longer at war with us. That, or you’re saying that we must return fighters to the battlefield simply because our Congress did not pass a declaration of war…which is stupid.
Comrade Stuck
@west coast:
Yes, but I added the possibility of release if a reasonable case could be made that an AQ member decides he’s had enough killing and renounces the Jihad. I know this is a dicey thing and very well could lead to a bad outcome if a non repentant militant is released by mistake. But it’s just the DFH in me when considering this AQ war will likely go on for a very long time. Imprisoning people for decades as a POW grates on my moral compass, and the prospect of redemption should be considered, IMO.
Svensker
@Zifnab:
I am so sick of this shit. Most of these guys were not “terrorists” and never strapped on a bomb-belt. Most of these guys were just random folks sold to the U.S. They have done nothing except be in the wrong place at the wrong time. But because they’re Muslims and brown, they are scary scary folks boogah boogah. Better lock them up and throw away the key.
When did we become such a whiny-assed country?
It’s time for preventive detention for suspected murderers and rapists now, isn’t it? I mean, what’s the difference?
Oh, and before we forget, let’s go kill a few hundred thousand foreigners for whatthefuck reason.
When did we become a bunch of ignorant, murdering thugs? Who whine.
Jeez.
ThymeZoneThePlumber
@J.W. Hamner:
Oddly enough, I think I do follow, sort of. It appears to me, watching the gyrations of the military and the justice departments under two presidents, that our criminal justice system doesn’t work very well against the threat of modern day terrorism.
Let’s say that that that is reasonable assertion, at least an arguable one. Is it then reasonable to expect that a couple of imperfect governments would thrash around trying to figure out a way to provide security in that flawed security model.
IANAL, but I do work within the criminal justice matrix, that parallel universe that operates the infrastructure. I am pretty sure that the problem I am describing is real, and a Gordian Knot of conflicting imperatives. And if it is, then the problem space here is a great deal more than just carrying on what amounts to a set of boilerplate and gratuitous rants against what were, at first, policies and practices of the Bush administration.
That outrage was fueled by multiple forces, at least two of which were the shitty job that Bush and his minions did of explaining and selling the approach to the problem, and general hatred for Bush and his minions, known as BDS.
I think that it’s time to move on from doctrinaire BDS reactions and look at the unpleasant realities of this situation and think them through.
In all the rants I have seen so far, I have never seen a proposed comprehensive solution proposed and vetted publicly by anyone, on either side of the issue.
Irrelevant,YetPoignant
“Become”?
truculentandunreliable
UGH. I agree that there’s really no easy solution to this problem, but Obama needs to step up and do the right thing.
The debate underlying this issue reminds me again that one of the worst things that the Bush Administration (and the right wing) did was to create an Orwellian lexicon that’s going to take a long time for us to break out of (if ever). The main example of this, of course, is the “war on terror,” and if we operate with an understanding that we are “at war,” then that really changes the debate about the detainees. I think that a lot of otherwise reasonable USAians are of the “Lock ’em up and throw away the key” school not because they believe that the detainees shouldn’t have rights, but because they honestly believe that we are at war. And while I certainly wouldn’t blame Obama if a released detainee committed an act of terrorism (unless there was compelling evidence that he was released because of an egregious error), people who think they’re at war certainly would. So not only has the Bush administration used real-world, concrete efforts to make this shit difficult–they’ve also manipulated language and ideas, which is probably worse.
Anyway, could we please put a moratorium on declaring war on anything for the time being, whether it’s a country or a nebulous concept? Thanks!
Leelee for Obama
Mine too, Stuck. But neither of us is President just now? In a perfect world, none of these decisions would be necessary. All would be clear and without messy unintended consequences. Sadly, I’m old enough now to know the perfect world I envisioned was something of a pipe dream, not that I smoked a pipe-too chicken! Presidents get to govern in the real world….and I wouldn’t take the job for 10 times the money.
Xenos
@Mojotron: Exactly. A republican can’t go to war and refuse to declare war. We have been doing exactly that for sixty years, and as a result we do not really have a republic any more.
It is all incredibly basic as a matter of political science, and plainly obvious as a matter of objective reality. But since nobody knows what to do about it, and because industry and the elites owe their power, profits, and influence to operating in the grey, semi-authoritarian state, nobody wants to admit the plain truth. I feel like one of the old codgers sitting around in a Checkov play, asking “what is to be done?” and resigning to just getting another drink.
We need a revolution (peaceful, of course), or the whole structure is going to shake itself apart at some point. Obama is not that revolution, but maybe he is a precursor. If he challenges the power system and gets driven out of power, and everything continues to go to hell, his story, his example, will be an important one.
Svensker
Oh, and whatever happened to Dawn Johnson’s nomination to OLC? Anyone know?
By the way, in a “war”, when possible enemies are picked up, you go through a process where you decide whether the guy is an actual enemy, or just a poor schlub detained by mistake. If a poor schlub, you release him. Mr. Bush skipped this step and just sent everyone off to be tortured in a touching kind of non-demoninational way. Very even handed, our Mr. Bush.
Now there are a bunch of poor schlubs in our custody, who have been tortured.
But we wouldn’t want to inconvenience any Americans by doing the right thing. God forbid. Americans are the most preciousest beings in the whole universe.
Fuckity fuck.
I am seriously pissed off.
truculentandunreliable
@Svensker: Exactly! It fucking drives me crazy. People have become so selfish and short-sighted and fearful. When the hell did this happen? And, of course, it bears repeating: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
Adam C
I can’t believe this. The president says he is going to take people who are found not guilty in a court of law and keep them in jail forever anyway. And still some of you are saying “he needs more time to sort this mess out”. How much time to you need to figure out that innocent people must be set free?
As has been pointed out above, many of these suspects were not captured anywhere near a battlefield, and have never been treated as POWs. Most (if not all) of them have verifiable citizenship in other countries who will be obliged to accept them if they are released.
And you don’t lock someone up forever because you have a feeling that they might do something bad in the future. Your once great country has gone insane.
truculentandunreliable
@Svensker: Replying to another of your posts! I seriously think that American Exceptionalism has not only harmed the rest of the world–it’s harmed US. Our country is crumbling around us, and people are still running around shitting their pants if anyone dares to suggest that America may not actually be The Greatest Nation on the Planet. Time to grow the fuck up.
ThymeZoneThePlumber
Not sure I agree. I take that as a slogan, a bumper sticker level bromide. And trying to dumb down and oversimplify the problem set here is what got us to this point.
To save time, and argument, I really blame two governments, the current one and the previous one, for failing to have confidence in the people and the processes enough to explain, and vet, and argue for a deeper understanding of the problem, and proposed solutions.
There’s an annoying irony here … in a country that prides itself on self government, and on government by the people, the people seem content to sit back and let government officials come up with solutions to extremely complex problems. Seeing this, the government tries to come up with solutions that sell easily and without a lot of effort, and sell well within whatever is one’s view of his place in a contentious two party system.
I think this is a real test for the American Experiment, and I don’t see much in the way of leadership on it coming from anywhere. Not from Washington DC, and definitely not from the mediablogosphere. All I get is a lot of barking dog noise.
Svensker
@ThymeZoneThePlumber:
Well, you used lots of big words, but you didn’t really say much. Our criminal justice system worked just fine for the 1993 WTC bombers. And for the Oklahoma City bomber.
Our criminal justice system doesn’t work very well when the Executive ignores it and does whatever the fuck it wants.
I understand that Obama probably has some people that they are fairly sure are guilty of something, but the evidence against them was all obtained illegally. Deciding what to do with those guys is a tough call (although we do it all the time in the civilian justice system). I don’t envy him having to clean up after Mr. Bush’s torture system.
However, if Obama would agree to allow out the information about that torture system, rather than trying to hide it, it would make dealing with the fruits of that system a cleaner and more honest process.
ThymeZoneThePlumber
Sorry, no sale to me. I don’t think the comparison is apt.
You are talking about an after-the-fact criminal process, which works fine after the evil deeds are done and there is material for a criminal process.
The ugly parts of this problem are at the prevention level, not at the prosecution-for-crime level. This fact is why the Cheney Administration was able to make hay with its mockery of the “criminal process” approach to preventing terrorism. The Cheneys were assholes in their approach to government in general, but right about this aspect of the problem.
I don’t know how you design a criminal justice system that finds and heads off terrorist threats effectively using the generous protections for the accused built into our system.
If a model or plan that handles that problem can be described, then my question is, why hasn’t anyone described it?
Comrade Dread
If you have ample evidence that someone is a terrorist, you should be able to at least get a conspiracy charge to stick. We have a ****ton of laws and prosecutors have shown themselves to be very creative when they want to be.
This policy will be inexcusable.
ThymeZoneThePlumber
I don’t necessarily disagree with this, but without really addressing that question directly, I’d say it is a mistake in my view to blur the issues of legal process and torture.
I think we can safely ban torture without reservation, without throwing any wrenches into the machinery of developing an effective and useful process for preventing terrorism by insane people who follow no particular set of ethics or rules.
I think it’s not useful to throw the gasoline of resentment of torture onto the coals of the prevention problem. Two separate issues and problem sets. The torture problem is a lot easier to solve, too. Just stop torturing. Period.
truculentandunreliable
@ThymeZoneThePlumber: Well, y’know, that wasn’t my whole argument, and I don’t believe I was trying to dumb anything down. I wouldn’t call supporting the right to habeas corpus under any circumstances “oversimplifying” the issue. Your (rather condescending) discussion of the issue may be more “nuanced,” but that doesn’t mean that it’s correct. Also, it’s pretty damn easy to be “nuanced” when it’s not your ass that’s being detained.
I do agree that our government has not had the confidence in us to explain the tough issues in an adult manner. However, the last president that did that was Jimmy Carter, and look where it got him.
ThymeZoneThePlumber
I didn’t say it was, or that you were. I am pretty much thinking out loud.
The tendency to project and turn simple statements into bales of straw is a defect of the intertrons communication model that goes back to Usenet days.
My reference to dumbing down was really aimed at the people in government who have relentlessly tried to dumb this whole issue set down into slogans and wisecracks. I think we are in a period of trying to recover from this. I am certainly not blaming you for it.
Bubblegum Tate
Fuck you, Obama. Stop dithering and do the (very obviously) right thing.
J.W. Hamner
@Svensker:
You’ll notice that it worked well only after things were already blown up. I understand that people don’t want to endorse indefinite detention and the concept of never ending war… I don’t either… but there is clearly a grey area here between criminal conspiracies and persons planning to commit “warlike acts” against the United States. I’d be happy if the FBI could catch them all and put them all on trial for said conspiracy, but I acknowledge that it some cases a Prisoner of War approach may be more appropriate.
Betsy
This is appalling. I just wrote a letter to the white house expressing my displeasure, not that I expect anyone to listen to it. I didn’t expect Obama to be our nation’s knight in shining armor, but I sure as hell expected him to do better than this.
Xenos
@ThymeZoneThePlumber:
There are plenty of models. You can look at what this country did to the Black Panthers and the Weathermen back in the sixties (infiltrate, undermine, assassinate). Those were purely domestic organizations, so the model really needs to more along the line of dealing with agents who have penetrated the country while under the direction of hostile foreign governments. The communist red gangs in Germany and Italy in the 60s and 70s were dealt with as a matter of domestic enforcement and international diplomacy. Another example is the IRA.
While the militarization of the police in these countries was not pleasant or ideal, there was at least the ability to demilitarize the police in the countries after the threat was past. On the other hand the British have apparantly accepted a system of national surveillance that is pretty extreme, and does not make a decent model.
Either way, the Cheney system of throwing our legal system out the window in order to empower an unaccountable executive is completely unacceptable. A ‘business as usual’ law enforcement approach would have been better, and probably more effective, that what he did.
Svensker
@ThymeZoneThePlumber:
Who are these insane terrorists? Robert Pape (Dying to Win) found that most terrorists are NOT insane, but are actually driven by real-world grievances. Whether we address those grievances or not (and I doubt we’ll stop supporting Israel or the Saud royals any time soon), the reaction to those grievances is fairly predictable. Good detective and police work should, in most cases, be able to contain that. After all, we had a great deal of information about the 9/11 perps, but didn’t bother doing anything about it. More draconian actions by our government won’t improve HumIntel.
Of course, if we’re going to continue bombing countries that have done nothing to us (Iraq) and supporting Israel as it bombs and humiliates its subhuman chattel, then perhaps the only way we can contain the blowback is by draconian measures.
PaulB
@ThymeZoneThePlumber:
Then argue it, already, bearing in mind that the burden of proof is on you. For the record, I do not agree that your assertion is reasonable.
ThymeZoneThePlumber
@Xenos:
You lost me Xenos. There are plenty of models, and the only one you describe is the Ronnie Ray-Gun style of muscling up on radicals from 40 years ago?
I don’t understand. Are arguing FOR militarization of the police, and Ronnie Ray-Gun “law and order” approaches to radical and possibly dangerous behavior?
Okay, if you are, fine, that’s up to you. I suppose that the approach can be sold if we start having regular and hideous terrorist attacks in the country and people get really pissed off. But barring that, I don’t see how those approaches are viable.
truculentandunreliable
@ThymeZoneThePlumber: Gotcha. Well, I apologize for overreacting. I had a lot of coffee this morning! I agree with you.
I think that part of this issue, for me, is deeply connected to the legacy of colonialism and American dominance and interference in the middle east, which is why I get so pissy. And this definitely relates to what you are saying–we’ve lived with slogans so long that people have absolutely no understanding of the history behind our relationship with the middle east. Given that history, I think it’s time to do the right thing, whatever the consequences are.
Brian J
@ Bill H:
That’s a good point.
PaulB
@J.W. Hamner:
Really? What “grey area” would this be? Either they are planning to commit an attack or they are not.
Appropriate in what way? Locking people up because they may decide at some future time that they want to attack us?
ThymeZoneThePlumber
I am asserting that absent the presentation of a model that looks like it will work, can be argued in the public square, and sold to a skeptical public, then there is no reason to think that you can prevent terrorism using before-the-crime prevention that is applied to ordinary criminal activity.
Look, this isn’t rocket science. I live in a county that processes well over 2000 felony convictions a month. Those are unprevented crimes.
What is your tolerance rate for unprevented crimes of terrorism? How long do you think this country will hold together under the pressure of monthly terrorist bombings inside the United States? The phrase “zero tolerance” is almost too weak for this imperative.
Americans want zero terrorism. How to you get it in a system that accepts tens of thousands of crimes a month as the norm?
ThymeZoneThePlumber
@truculentandunreliable:
Hey, overreacting is my job ;)
Goddamit!
Stefan
So seriously… you have a terrorist in custody who has not done anything you can convict him on yet, but you have ample evidence he is a terrorist bent on blowing shit up… so you let him go and wait for him to blow said shit up so that you can put him in jail? I’m not sure I follow.
If you have “ample evidence” then why can’t you convict him? The fact that you can’t convict him seems to indicate that the evidence is perhaps not so ample…..
Remember, the Bush regime also claimed to have “ample evidence” that they were holding hundreds of hardened terrorists at Guantanamo, and then it turned out they were mainly goatherds who couldn’t run very fast.
PaulB
@ThymeZoneThePlumber:
We already have it. It’s called “investigation” and “intelligence,” both inside and outside the U.S. We’ve thwarted hundreds of attacks both inside and outside the U.S. using those techniques over the years.
And once you have the intelligence, you prosecute using the criminal justice system we already have, complete with its “generous protections for the accused,” (a comment, by the way, that reveals that you don’t know nearly as much about our criminal justice system as you think you do).
We have. Maybe the problem is that you’re not listening? Or that the burden of proof is on you to demonstrate that what we have isn’t working, a burden that you have thus far completely failed to meet?
truculentandunreliable
@Svensker:
Yes. Which is what I was trying to get at in my last post (albeit not very well). The more steps we take toward establishing DOING THE RIGHT THING, the more we are likely to see a decrease in terrorism. Yeah, there are risks, but the alternative, as you said, is to become more and more draconian, and even then, there will still be risks. I would rather take the risks and know that innocent people aren’t being imprisoned in my name.
ThymeZoneThePlumber
Again, no sale. Cold blooded murder is sociopathic, period. The grievances don’t excuse it. Sociopathy is not sane, in my view.
We can’t prevent everyday sociopathy in this country worth a damn. If you think we can, you need to spend some time at the local courthouse.
We are going to prevent sociopathy on steroids using the methods that fail to prevent everyday sociopathy?
Again I say, show me the model that does this. Anybody, in our out of government. Any government. Just give me the executive overview of how that works. I work in the system, I don’t need the basics explained to me.
b-psycho
I’m just wondering when the part where we stop encouraging new terrorists with our habit of approaching the world as if the rest of its population lives to serve the interests of a few asshole yanks kicks in.
Xenos
@ThymeZoneThePlumber: Your question was whether there were models – I don’t like the Edgar Hoover approach, but it did effectively eliminate the Black Panthers as a movement and as a center of power for people opposed to the establishment. It is a model, just like the European response to state sponsored terrorism is a model. We learn from them.
The key strategy is to terrorism-proof our country. Defend the appropriate weak points (like airports, nuclear stations) that we have, and to do our urban planning in ways that takes civil defense into account. In other words, don’t build the tallest buildings in town over a subway station which is over railway lines. If al-Qaeda style terrorists don’t have targets, they can’t do the sort of damage we say on 9/11.
Terrorism is a fact of life. I don’t see how pre-emptively locking up dozens, or even millions of people can mitigate the problem in a significant way. While we all argue about Guantanamo the real work is not getting done.
ThymeZoneThePlumber
Nope. Haven’t seen it. A criminal justice system that is totally pourous is not going to contain terrorism. That’s the whole point.
That’s why this issue is on the table. Just stamping your feet and insisting that this system can do so is not very convincing. It doesn’t do a very good job of preventing much of anything in the upper class felony range. Even if the system had the properties to allow it to do so it does not have the resources to carry out the plan.
PaulB
But you still have to demonstrate that we don’t have a model that will work. You are assuming that, a priori, rather than defending it.
You are assuming that we have no choice but to wait for someone to act, which is a rather silly assumption.
No shit, Sherlock.
And your point is? We have always had “unprevented” crimes; we always will.
What a stupid question. What is your tolerance rate for unprevented crimes of murder? What is your tolerance rate for unprevented crimes of armed robbery? What is your tolerance rate for unprevented crimes of domestic violence?
Yawn… Let me know when you have an argument that even remotely resembles reality.
Americans want zero crime, period. Strangely enough, we seem to be holding together even though we don’t live in that utopia that Americans want.
You don’t. Next question?
Betsy
@ThymeZoneThePlumber:
But that rate is a total red herring. There is no evidence that, absent illegal detentions, there would be terrorist attacks every month. None at all. I think it is true that we will NEVER be able to prevent all attacks. We just can’t. And that’s something we have to learn to live with. We seem to accept the tens of thousands of deaths per year from car crashes without doing much about it; the likely fatality rate per year from terrorism would be tiny.
So yes, the question is what we can live with, and I think it’s important that we start to ask why preventing a few dozen deaths per year via illegal detention is more important than preventing hundreds or more by other means/causes. But it is also important to be realistic – there are not going to be monthly bombings. There is absolutely no reason to think any such thing.
J.W. Hamner
@PaulB:
If a member of al-Qaeda is captured in Afghanistan, even if you have no evidence of a current conspiracy, do you believe that they could be held for the duration of that conflict as a PoW? Or do you think we should have to release them back onto the battlefield until we can acquire some evidence, like, say, dead Americans at their feet?
Now, what if we or another government catches a member of al-Qaeda in another country? We have no evidence that they are currently planning anything, but we have rock solid evidence that they are a member of the organization. Possibly we could task the FBI to monitor them and build a case for conspiracy, or alternatively we could consider detaining them as a PoW. Neither may be ideal and maybe we need Congress to create a new system.
I would call that fairly “grey”, but YMMV.
PaulB
There are none so blind as those who will not see. The burden of proof is on you. Thus far, you haven’t even *tried* to meet it.
Nope, this issue is on the table because a few fainthearted pissants quiver in fear at the slightest mention of the word “terrorism.”
ThymeZoneThePlumber
I totally agree with this, and made this exact argument here several years ago.
But here’s the piece of sand in our teeth: One terrorist attack committed by a person or persons who slipped through the completely porous system we have now and nobody is going to think twice about going back to the Cheney approach to prevention.
Arguments to the contrary are fine for blog churn, but remember 2002. That was what you get when the system fails. Americans wanted to kick any available butt.
truculentandunreliable
@ThymeZoneThePlumber: Well, Americans need to stop acting like whiny-ass titty babies and realize that terrorism will always be a part of life and you’re more likely to die in a car accident today than in a terrorist attack.
We’ve survived long periods of fear and deprivation throughout our history. Other countries have survived multiple terrorist attacks.
I’d also like to know why you think that we’re going to have monthly terrorist attacks, or why detaining potential terrorists will prevent that. Are you asserting that we haven’t had a terrorist attack in the last few years (by a foreigner, anyway), because of Guantanamo? I think that would be a pretty fault assumption to make.
PaulB
How do you know they are a member of al-Qaeda?
Which conflict? The “war on terror” will never end, so no, I do not believe they can be held for the duration of that conflict.
LOL…. Drama queen much? An appeal to emotion is hardly a convincing argument.
Like the “rock solid evidence” that led us to imprison everyone currently in Gitmo?
Obviously.
ThymeZoneThePlumber
Well, if that were true, which it is not, then your arguments would be with the pissants, not with me. I am not particularly afraid of terrorism at all. Except maybe for nuclear terrorism.
Americans are not going to tolerate terrorism. Exactly why this is so, I am not really sure. But looking at the differences between the way Americans react and the way the British reacted to all those years of terrorism after WWII makes me wonder. I don’t really know why this is, but I do know that the reaction to terrorism is going to make whatever we are bitching about here today look like child’s play.
J.W. Hamner
@PaulB:
You don’t believe there is a conflict in Afghanistan? Where do you think all those soldiers are? The same studio they faked the moon landing?
truculentandunreliable
@ThymeZoneThePlumber: But this gets back to your argument about how people have been convinced by slogans and insults. That’s all that it was about in 2002. Instead of saying to ourselves, “Hey, the system failed, what should we do about it?” we attacked two countries, one of which had fuck-all to do with the attack on the WTC. I don’t give a shit if Americans want to kick some ass after a terrorist attack–our leaders, as you were suggesting a few posts ago, should expect better of us and it makes no sense to me to engage in serious human rights violations because Americans are bloodthirsty and ignorant.
I mean, that’s what you’re saying essentially, right? We need preventative detention because if there’s a terrorist attack, we will unleash hell on anyone who might be associated with it?
Betsy
@truculentandunreliable:
Thanks for that caveat. Somehow clinic bombers often seem to get conveniently elided in discussions of terrorism.
Svensker
@truculentandunreliable:
Yes. And, yes, again.
ThymeZoneThePlumber
I’m not arguing that we would, just making a rhetorical point.
But the frequence is not really the issue. We had 1993 and 2001 for real dramatic non-domestic-terrorism. That’s two big events in 16 years, and look at the effects on our politics and government.
truculentandunreliable
@Betsy: Dude, I am much more afraid of a right-wing violence than anything right now. But that’s a whole ‘nother conversation.
ThymeZoneThePlumber
Well first of all I am not arguing in favor of any model. I haven’t seen one worth standing up for.
But the real reason to prevent the attacks is to minimize the damage we will do to our own selves in the zeal to react. Look at how one bad terrorism day screwed our politics for years. It will take years and years from now to fully recover. We are still carrying two wars that came from that event. Building useless border fences, etc.
It’s not the hell we will unleash on others, it’s the hell we will cause ourselves.
Betsy
@ThymeZoneThePlumber:
Actually, I think that the real point to be made here is that there is NOT an automatic or inevitable response to terrorism, but rather that such responses are shaped by current politics and politicians. The difference in the reactions to those two bombings is one example of that, as are the varying reactions to clinic bombings, Oklahoma City, eco-terrorism, etc. We don’t have to accept as inevitable that post-9/11 response.
Kit
Not to worry – I’m sure that he will be ripped to sheds.
PaulB
Sigh…. Not one that is relevant to this discussion, which is why I asked the question I did.
Betsy
@truculentandunreliable:
I would say that is logical, given that there have been multiple actual acts of right-wing terrorism over the last several years, and more activity brewing among those types recently.
PaulB
Wow… Talk about a total lack of self-awareness. So we have to preemptively do damage to ourselves so that we won’t later do damage to ourselves. Got it.
truculentandunreliable
@ThymeZoneThePlumber: I agree with your last sentence, but part of my point is that is what we’re already doing. We’re already compromising and reacting out of fear instead of doing what’s right and accepting that there might be some risk. The only way to stop that cycle is to refuse to let terrorism actually accomplish that goal.
I also think just to accept that there will be a backlash instead of trying to change people’s minds about how we should react to terrorism isn’t expecting much out of the American people.
Furthermore, how many “preventative measures” will we accept in order to prevent a more extreme backlash? At what point do those “preventative measures” become just as bad as the hell that we’re afraid of unleashing?
Xenos
@ThymeZoneThePlumber:
I think that is pretty ahistorical. We had a president killed by Confederate agents, and then watched terrorists take root throughout most of the former confederacy, and then folded on reconstruction within 20 years. We had another president who was killed by a bomb-throwing anarchist — did we declare a “War on Anarchy?”
On the other hand, native american groups conducting terroristic raids were pretty much eliminated by means of genocide, but that was a pretty general approach to Injuns after a while.
In any case, the US was in a state of hysteria, for whatever reason, before 9/11. Remember the ‘Summer of the Shark’? Al-Qaeda was so successful in causing our self-destructive response to 9/11 because we were already in the process of flipping our wigs. I sense, and I hope, that weird cultural moment has pretty much passed by now.
Note -edited for grammar. I picked a bad day to stop sniffing glue.
Betsy
Also, I have a theory that people are way more freaked out by airplane terrorism than any other kind, though I’m not entirely sure why that is.
Beeb
If the question is whether we should have a police state now to prevent a police state later, then my answer is hell no. It’s wrong and it doesn’t work. Either reason should be enough to oppose it.
truculentandunreliable
@Betsy: Yup. I can’t really recall any reactions that I would interpret as being as extreme as the reaction to 9/11 aside from the Sudan pharmaceutical plant bombing. Sure, 9/11 was a much, much larger attack, but before that, the OKC bombing was the biggest attack on American soil and pretty much unthinkable to most people.
truculentandunreliable
@Beeb: Agreed. Either way, we’re going to be attacked. It’s inevitable. Might as well enjoy a relatively free society while we can.
PaulB
You’re the one pretending that we have to abandon our Constitution and our long-held principles, so sorry, but my argument is indeed with you. I’m still waiting for you to actually defend your assertions.
And yet here you are, quivering in fear that we might actually have an act of terrorism on U.S. soil (ignoring the fact that there are such acts pretty much every year, including this year) and pretending that our current system is not adequate to handle this.
Um… you do realize that this is not only untrue, it’s meaningless, don’t you?
And yet, like your every other assertion in this thread, you don’t actually see fit to provide any evidence to back this up. Why is that?
J.W. Hamner
@PaulB:
Of course it’s relevant. Once you acknowledge that there is a conflict that is (should) be governed by Rules of War and the Geneva Convention, then you have to admit that fighters on that battlefield could, in fact, travel to other countries. Then… voilà… you have a problem that is not ideally suited to either the criminal justice system of the prisoner’s of war system. See? That wasn’t so hard.
PaulB
What it really comes down to is: Was 9/11 a failure of the current system or was it a failure of the Bush administration? If the latter, and I submit that the evidence is pretty clear that it was, then the proper response is not to change the system but to change the administration.
That’s pretty much true of everything that resulted from 9/11: Iraq, Guantanamo, Abu Ghraib, the building up of the threat from al Quaeda — the problem was not in our system, it was in the Bush administration. And you clean up the mess by going back to the old system, not sticking to the system that led to the mess in the first place.
truculentandunreliable
@J.W. Hamner: Huh?
Maybe I need more coffee after all.
PaulB
@J.W. Hamner:
The scenarios we are discussing here have absolutely nothing to do with the current conflict in Afghanistan.
What’s happening in Afghanistan is a civil war or an insurrection, not a war between the United States and another country. That conflict is indeed covered by the Geneva Conventions. And none of this has anything to do with the situation in Gitmo, which is why I asked the question I did.
No shit, Sherlock. So?
Really? And your evidence for this is, what, exactly?
Beeb
T&U at 114, I hope we’re not, but sooner or later, yup, it’s quite possible. I would be a lot happier if the Obama administration stopped trying to prevent I-told-you-sos from the Cheneyites and started dismantling the surveillance and detention policies established by those goons. I’m getting tired of having flashbacks to the ’70s, when a lot of us thought the post-Watergate reforms had settled these arguments.
J.W. Hamner
@PaulB:
You continue to make zero sense. It has everything to do with Afghanistan. It is about PoW’s. Some of which come from Afghanistan/Iraq and some of which are captured elsewhere and what their legal status is.
Betsy
@PaulB:
I generally agree, but I would add that the problem is also in *reality.* Bad shit is going to happen sometimes. That’s not to say I’m totally fatalistic about it; I do believe appropriate, legal, ethical, and proportionate measures should be taken to prevent terrorism. But when the the conversation about what those measures should be is predicated on the assumption that there exists some way to prevent all terrorist acts, that’s where we start getting into trouble.
Jay in Oregon
I would think that our criminal justice system can deal just fine with terrorists, if we’d bothered to try it before we let potential suspects be dragged in by God knows who to be thrown into some black prison hellhole.
With no legal process in place for acquiring, processing, and detaining these people, we have no moral justification for holding them. And yeah, some of them will be willing to undertake violent action against the U.S. when they were not disposed to before; funny how illegal arrest, detention and torture will inspire that in a person.
Neocons don’t like to concede that last part. Actually, I think it’s a moot point to them; we’re talking about scary furrin’ Muslims, so they are guilty by default.
Stefan
How long do you think this country will hold together under the pressure of monthly terrorist bombings inside the United States?
Ummm…about as long as Israel?
Now, what if we or another government catches a member of al-Qaeda in another country? We have no evidence that they are currently planning anything, but we have rock solid evidence that they are a member of the organization.
Then you convict them on the basis of their membership in an organized criminal conspiracy. It’s already a crime under US law to be a member of a terrorist organization. This isn’t that complicated.
Little Dreamer
@PaulB:
TZ on my computer:
The whole reason for the Bush Cheney posture on this issue, as well as the Obama posture on this issue is the idea that Americans are going to accept a certain level of in country terrorism just as they accept a certain level of other types of crimes is simply not politically viable.
What politician is going to go before the people and say, the criminal justice system works fine. Oh sure, it fails to prevent thousands of crimes, but it’s a good system. And the occasional terrorist attack that may result from trying to employ this system to prevent terrorism is just the price we have to pay for our values and our freedoms?
The criminal justice system is a balanced and nuanced system. Americans don’t want nuance, they want prevention of terrorism. That’s why we are here having this discussion.
Insisting that this is not true is all fun and games at the “let’s blog today” level, but doesn’t help advance the solution to the problem.
If you are arguing that the current CJ system is good enough, then let’s meet back here on the day after the next 911-type attack and have a new thread.
The useless Cheney administration got itself reelected on this premise. For reasons I don’t really get, fear of terrorism runs deep in this country. That is a political reality.
Stefan
For reasons I don’t really get, fear of terrorism runs deep in this country.
No, fear of terrorism by dark-skinned people runs deep in this country. It doesn’t seem to run the other way. Just for one example, white Christian terrorists in the KKK set off over four hundreds bombs targeting blacks and civil rights activists in just four years in Mississippi from 1964 to 1968, and yet that didn’t seem to cause mass hysteria and a demand to curtail our civil liberties.
Adam C
Kidnapping people and keeping them in cages for the rest of their lives, with no process or remorse, could also be considered sociopathic.
PaulB
@J.W. Hamner:
No, actually, it doesn’t, since many of these people were not taken in Afghanistan and have zip to do with the current actions in Afghanistan. The original war in Afghanistan is over. We toppled the Taliban and we installed a friendly government. We even let the Afghanistan people vote on our hand-picked candidate.
That’s why I continue to ask the question: which war are you talking about? The original war that is over and that we won? The “war on terror” that will never be over? The current insurrection in Afghanistan that has little to do with the U.S.?
No, it’s not. If this were really about POWs, there wouldn’t an issue, since the Geneva Conventions already covers that area quite thoroughly. We’re talking about people who the Bush administration, and now the Obama administration, didn’t want to treat as POWs or as criminals, but as something else altogether, which is why we’re having this discussion.
Little Dreamer
TZ will be gone for the rest of the day (I’m stealing him). If you wish to reply, please call 1-800-Make-A-Gripe. Thank you for your cooperation.
PaulB
@Betsy:No argument here, which is why I’m particularly irritated about the silliness that we can somehow get to “zero terrorism” or that we have to have “zero tolerance” because we just cannot handle *any* terrorist attacks, ignoring the fact that we have had “terrorist attacks” for years, and continue to have them.
J.W. Hamner
@PaulB:
Do you recall the AUMF? I’m sure you do. It put al-Qaeda and the Taliban strictly into the PoW camp. Unfortunately, Bush/Cheney decided they didn’t like the Geneva Conventions and all sorts of terrible things were done… but ultimately, that Act of Congress set members of those organizations outside the criminal justice system… and to this point, the Supreme Court has agreed.
You want to know why calling them PoW’s isn’t ideal? It’s the whole purpose of this thread… we can hold them forever, since it’s a never ending conflict… and unless there has been a Supreme Court ruling I didn’t notice, that is perfectly within the bounds of the Constitution.
So this is why it’s in everybody’s interest to come up with a system that deals with both the complexities and realities of the situation. Pretending that we’re not at war with anyone doesn’t help anything.
PaulB
And yet we have had a “certain level of in country terrorism” for decades. This is just another unsupported assertion.
The intelligent ones. You still have to demonstrate that the current system does not, in fact, work at an acceptable level, or that any other system will do any better.
A rather succinct statement of reality, although I’m sure you intended it to be sarcastic.
Man, you really *don’t* know anything about the criminal justice system, do you?
Americans don’t want nuance, they want prevention of murders. That’s why we are having this discussion. Americans don’t want nuance, they want prevention of armed robberies. That’s why we are having this discussion. See how silly you sound?
You have yet to back up a single one of your many assertions in this thread, nor that we have a “problem,” nor that there is, in fact, an attainable “solution.”
If you are arguing that the current CJ system is good enough, then let’s meet back here on the day after the next murder and have a new thread. If you are arguing that the current CJ system is good enough, then let’s meet back here on the day after the next armed robbery and have a new thread. Again, see how silly you sound?
The burden of proof is on you for all of this. Thus far, you haven’t even *tried* to meet it. You simply continue to make unsupported, and in some cases, silly assertions. You want to change the system? Fine. What are you going to replace it with? You want to lock prisoners up forever on the theory that they might someday commit a crime? Fine. Show that you can actually figure out who these people are and that this will actually work and that it passes Constitutional muster.
In other words, actually provide some substance to back up your arguments.
PaulB
Bullshit.
And, again, bullshit.
You really don’t know anything about this topic, do you? Go do your homework before you post again.
You have yet to demonstrate that the current system cannot, nor that any other solution will.
Nice try at ducking the issues I noted above. Who, precisely, are we at war with, with respect to the inhabitants of Guantanamo?
J.W. Hamner
@PaulB:
You say things like “actually provide some substance to back up your arguments” and then answer said substantive arguments with “Bullshit”. If you want to have a real mature discussion then let me know.
Stefan
but ultimately, that Act of Congress set members of those organizations outside the criminal justice system… and to this point, the Supreme Court has agreed.
Hmmm, I was not aware that Congress had the power to place any individuals outside the purview of the constitutionally mandated protections of the Bill of Rights by a simple voice vote. Could you point me to the section of the Constitution that gives them that power, because I can’t seem to find it in my copy….?
J.W. Hamner
@Stefan:
None of those ever applied to people who aren’t U.S. Citizens.
mrmike
@ThymeZoneThePlumber:
This is a gross oversimplification. Not everyone who murders (as a terrorist, in cold blood, or otherwise) is a sociopath. Just because your worldview doesn’t match theirs doesn’t make them a sociopath. Particularly if they’re from a different sociological background entirely.
The Salem witch trials and the lynchings in the Southern US (for examples) weren’t a bunch of sociopaths killling uppity women or black folk and describing them that way would rob us of the lessons to be learned from the actual motivations involved.
That one is simple. We didn’t live through the Blitz. We’ve never actually had our homes dropped around our ears in recent memory. The Brits (for all their other issues) have resolved that this sort of thing just won’t change them that way.
Rick Taylor
@Zifnab:
Umm, if all the evidence we have is tainted by false confessions under torture, then how on earth do we know he’s dangerous?
Stefan
None of those ever applied to people who aren’t U.S. Citizens
No, that’s simply false. Constitutional protections apply to anyone subject to US law, including non-citizens. There is a lengthy and well-established body of law establishing this principle.
Stefan
Americans are not going to tolerate terrorism. Exactly why this is so, I am not really sure.
Bc compared to the British, Irish, Germans, French, Italians, Israelis and others who’ve lived with years of domestic terrorism without flinging themselves into pants-wetting hysteria, Americans are incredible pansies? Is that your hypothesis?
J.W. Hamner
@Stefan:
The Constitution protects a French person in France’s right to free speech? Neat!
Cat G
Once again an interesting and stimulating thread. A lot of us aren’t pleased with some of the decisions/actions that the O Admin seem to be taking. And we should speak up, discuss with our friends & family, smack the media, press our congresspersons and push back hard. At the same time, BHO inherited the Aegaen Stables, and hasn’t been in power for 6 months yet. Hundreds of appointed positions have yet to be filled, not least because the R’s in the Senate are running a guerrilla war. I’m thrilled that we’re not thinking or acting like a bunch of brain-dead lemmings like the Bush coalition did until about 2008. But let’s keep things in perspective. For example, lots of media and lots of dems get all gaspy when they think Biden has gaffed. He is not sucking all the oxygen out of the room like you-know-who. And next time someone tries to capitalize on some mistake the response has to be he ain’t Palin. O is picking pretty good people, he and they are demonstrably working their as%es off and all in all if I’d thought last September & October that things would be going this well in America I would have been thrilled. And let us all remember that politics is the art of the possible.
And isn’t it kind of fun watching Mika & Joe S. react to the sh&t storm over the “Real America” remarks.
We’ve got the best chance we’ve had since the 60’s to get good things done for Americans, it is WAY to early for the agita.
Cathy W
@J.W. Hamner:
…last time I checked a French person in France was not subject to U.S. law.
J.W. Hamner
@Cathy W:
Look, I’m not one of those people who thinks detainees shouldn’t have habeas rights, but Stefan is acting like there is no ambiguity in the legal status of detainees due to the AUMF… which is clearly not the case. They’re simply not guaranteed all of the rights spelled out in the Bill of Rights.
Xenos
@J.W. Hamner: Don’t be a dolt. Constitutional rights accrue to any person in the US. Certain rights, such as the right to vote, are only vested in citizens, More fundamental rights, such as Habeas Corpus and due process, are not contingent on citizenship status.
Stefan
What I wrote: Constitutional protections apply to anyone subject to US law, including non-citizens. (bolding mine).
What J.D. wrote: The Constitution protects a French person in France’s right to free speech? Neat!
Cost of wifi: free.
Lack of reading comprehension: priceless.
Stefan
/ Don’t be a dolt. Constitutional rights accrue to any person in the US. Certain rights, such as the right to vote, are only vested in citizens, More fundamental rights, such as Habeas Corpus and due process, are not contingent on citizenship status.
See, e.g., the Supreme Court ruling in Yick Wo v. Hopkins (1886):
The guarantees of protection contained in the Fourteenth Amendment to the Constitution [i.e. “nor shall any State deprive any person of life, liberty, or property, without due process of law”]…extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, of color, or of nationality.
J.W. Hamner
@Xenos:
Gee, if it’s so clear cut, I wonder why these things need to be decided by the Supreme Court?
Xenos
Because some people can’t be convinced of the plain meaning of a straightforward text unless an authority figure weighs in on it.
What would it take to convince you, for example, the the word ‘person’, spelled P-E-R-S-O-N in the constitution, including the 14th amendment, is a distinct concept from the word ‘citizen’?
We don’t need the Supreme Court to tell us what that means, unless we have substandard intelligence or are proceeding with arguments based in bad faith. Both of these apply to members of our last administration, unfortunately.
PaulB
And, hey, what do you know, Stefan’s right. There may be “ambiguity in the legal status of detainees,” although even that is arguable, but it’s got nothing to do with the AUMF. Have you even read that document?
PaulB
Dude, when you write manifestly false, ill-informed, and just downright stupid assertions, what the hell do you expect? What I wrote “bullshit” to was, in fact, pure, unadulterated bullshit. There was nothing “substantive” in your post; what you wrote was false. Deal with it.
It’s obvious that you don’t have the foggiest idea what the AUMF actually said and what it did. It’s equally obvious that you haven’t been following the litigation around these issues and have no clue what the U.S. Supreme Court has actually ruled. When you’ve done your homework, feel free to come back. Until then, you’re getting the responses you deserve.
You’ve already made it abundantly clear that you are incapable of such a discussion.
PaulB
It occurs to me that Hamner may be confused rather than ill-informed, that when he’s referring to the AUMF, which doesn’t say what he’s claiming it does, he really means the Military Commissions Act. If so, he’s on somewhat stronger ground there for some of the assertions he’s making with respect to the status of the Gitmo detainees.
Of course, he’d still have to explain why the Supreme Court struck down section 7 of that act, the section that dealt with habeas corpus and the status of the Gitmo detainees.
Stefan
So seriously… you have a terrorist in custody who has not done anything you can convict him on yet, but you have ample evidence he is a terrorist bent on blowing shit up… so you let him go and wait for him to blow said shit up so that you can put him in jail?
A bit late on this, but if you have ample evidence someone is a terrorist bent on blowing shit up, then he already has done something you can convict him on. You convict him on criminal conspiracy to commit a terrorist act, as well as membership in a terrorist organization. You hardly have to wait for him to blow something up. This isn’t rocket scientist, as our former president would say.
drillfork
@zaine_ridling:
Um, Hillary is IN the Obama administration. How is she any better?
Jordan
Brian J has it right.
People are conflating two separate issues: the legality of holding detainees under the rules of the Geneva Conventions, and the legal issues involved in actually trying certain detainees in court.
SCOTUS has ruled that it is perfectly legal & constitutional for the US to hold detainees as POWs or “other” combatants under Geneva rules “for the duration of hostilities,” so long as detainees have access to a “competent tribunal” which can review & determine their status. Originally, the Bush administration tried to hold these people without any judicial review whatsoever. But Rasul v. Bush granted habeas to the Guantanamo detainees & ordered a GC-compliant tribunal (military commissions) to review their status. Hamdan v. Rumsfeld found that the kangaroo courts set up by the Bush admin and Congress in the Detainee Treatment Act were insufficient substitutes for habeas. Boumediene v. Bush again asserted jurisdiction in Guantanamo, again granted habeas to detainees, and found that if Congress wants to suspend court review of such detainees it must provide an “adequate” substitute for habeas proceedings, along with other non-laughable standards of evidence & procedure. That’s where we stand now: detention of these people “while hostilities continue” is legal according to the Supreme Court, but only pending the development of an “adequate” judicial framework for hearings to determine their status.
The issue of bringing criminal charges (whether crimes of war or regular civil charges) against detainees is a separate issue from the question of their detention as POWs/enemy combatants. Some of them could be charged with, say, conspiracy to commit terrorist acts. They would then enjoy all the protections of due process in a trial to determine their guilt or innocence. But, even if found innocent of specific charges, they could in theory still be detained as enemy combatants without violating US law, according to the Supreme Court.
Now, if the Obama administration decides to detain people, even if a SCOTUS-approved tribunal/commission finds that they are not enemy combatants in the ongoing war against al Qaeda, then that would be grounds for saying Obama is violating the law much like the Bush Administration originally set out to do, before getting handed its butt on a platter in multiple Supreme Court cases.
OC
This is deeply disappointing and is an exceedingly stupid rationale for indefinite detention. They may as well lock me up because I might jaywalk in the future. I’m not saying I will – but I COULD do it. Sheesh. Completely gutless move.
chrome agnomen
this point has been made before.
worldwide, there are millions upon millions of people who wish to do us harm, not without ample justification in many cases. releasing the relatively few detainees for whom there is little or no evidence of wrong-doing or wrong intent toward us will not in any significant way alter that fact, or increase our vulnerability, and might conversely lead a not insignificant number of those people to mitigate their feelings toward the US.
all this reasoning dodges around the plain truth that the treatment of the vast majority of these people is a crime against humanity. is there a greater indictment that can be made?
J.W. Hamner
@PaulB:
What Jordan said. IANAL, but it seems to me that the only thing the Supreme Court has said about preemptive indefinite hostilities is that it’s fine as long as they get a chance to prove they’re not terrorists.
This doesn’t seem a lot like the criminal justice system American citizens are used to, no matter what you, Stefan, or Xenos assert.
Stefan
What Jordan said.
I don’t think you understand what Jordan said. Read it again.
IANAL, but it seems to me that the only thing the Supreme Court has said about preemptive indefinite hostilities is that it’s fine as long as they get a chance to prove they’re not terrorists.
IAAL, and you’re misinterpreting this. I don’t know what you mean by “preemptive indefinite hostilities” — either hostilities are occurring or they’re not. I think you might mean “preemptive indefinite detention”, but again you seem to be conflating two separate concepts: (i) preemptive indefinite detention, i.e. locking someone up for something he might do but hasn’t done (which would be governed under the laws governing the criminal justice system) and (ii) detaining active combatants, whether or not POWs, during an active conflict (which would be governed by the Geneva Conventions). They are not the same thing.
J.W. Hamner
@Stefan:
I meant “preemptive indefinite detention”. Sorry for the confusion.
The people in Gitmo can be detained until somebody declares an end to the “War on Terror”, as long as they get to try and prove they are not terrorists correct? How is that not “preemptive indefinite detention”? I ask in serious, not snark. Explain to me where I’m getting this wrong, because I honestly don’t understand where you guys are coming from. My assertion all along is that they are something like PoW’s but not exactly, which is why this situation needs to be addressed… but then you come in saying they have a right to due process, which seems limited to habeas to me at this point.
Jordan
@Hamner
The Supreme Court has ruled that detainees can be held “for the duration of hostilities” as specified in the Geneva Conventions. It has also ruled that they have a right to challenge their detainment and force the government to prove that they are in fact “enemy combatants” (and that “hostilities” are still ongoing).
This is an entirely different matter from the question of whether & how detainees can be charged with crimes. They don’t have to be charged with a crime in order to be detained as combatants. Combatants are not necessarily guilty of committing any crime…they are prisoners under the rules of war, and holding/charging them for crimes they’ve committed is a separate legal matter.
One uncomfortable question is how long can people be detained in this conflict. A simple answer would be “as long as al Qaeda continues to plan & carry out acts of war against the US.” Another simple answer could be “Until a formal cease-fire/surrender is obtained from al Qaeda.” But the actual issues are far more complex than that. Still, there obviously has to be a limit to how long we can detain combatants, and Obama clearly indicated in his speech a few weeks ago that he aims to work to establish those limits, but he admits it will be “difficult” to resolve the issue.
Personally I’m a little apprehensive by how slow the administration is moving on this issue, but I’m willing to give them more time to work with Congress, the courts & the military to find workable solutions.
People who imagine this delay makes Obama “just like” Bush, including Glenn Greenwald, seriously need to go back and look at Bush Administration policy before Rasul v. Bush. They tried to claim they could detain people without any review at all — not even a sham military commission — and tried to create a novel category of detainee that would be completely exempt from Geneva Conventions (and US law), and completely beyond the jurisdiction of any US or international court.
We are not anywhere close to that kind of travesty now. What we have is a giant mess left by the Bush Admin, and it’s Obama’s job to somehow unwind the hairball.
clio
Listen to these toadies think and think about why we don’t really need the constitution now. It’s a hairball. It’s difficult. It’s not so bad. You fucking slaves, you’re like some idiot who bought yet another shit GM lemon trying to convince yourself that this one’s a sporty, reliable chick magnet. Your empty suit token puppet mediocre coward just finished the job Bush started and your constitution has spiraled down the shitter out of reach. Detention without trial. Domestic surveillance. When they blind you and drown you and fuck you with the mop you’ll still be nodding agreement.
PaulB
But see, here’s the thing: Jordan didn’t say anything like what you have been saying and, in fact, some of his comments directly contradict yours. Are you still pretending that the AUMF has anything at all to do with this?
You should have stopped with “IANAL.”
Moron, none of us have asserted any such thing.
Bob
@Zifnab:
More to the point, he imprisoned thousands of utterly innocent American citizens in internment camps simply to quell public panic. Not to downplay the importance of this particular issue, but in terms of constitutional malfeasance, it kind of dwarfs this matter.
Bob
@Zifnab:
More to the point, he imprisoned thousands of utterly innocent American citizens in internment camps simply to quell racist public panic. Not to downplay the importance of this particular issue, but in terms of constitutional malfeasance, it kind of dwarfs this matter.
Bob
@Zifnab:
More to the point, he imprisoned thousands of utterly innocent American citizens in internment camps simply to quell racist public hysterial. Not to downplay the importance of this particular issue, but in terms of constitutional malfeasance, it kind of dwarfs this matter.
Bob
Sorry about the triple post — server acting up I guess!! Please delete all but the last (and this), thanks.
Bob
@OC:
Not really arguing with your logic, but just to be a bit more fair shouldn’t it be “I could go on a gigantic killing spree or create a bit of ad hoc germ warfare.”
I’m entirely against indefinite detention, but let’s not fool ourselves that the stakes are small.
J.W. Hamner
@PaulB:
Yes. That’s what makes them enemy combatants. I have been saying exactly what Jordon is saying.
If they get tried for war crimes, whatever their rights there and whatever the results, they can still be put back to detention… essentially forever. That’s the point.
“Enemy Combatants” don’t have the same rights as American getting arrested for a crime. They are not guaranteed any due process other than a right to challenge that they are being lawfully detained. What happens during a trial is completely immaterial and nothing at all about what I was talking about… since the outcome doesn’t matter… they’re still “enemy combatants”, whether they were guilty of conspiring to blow shit up or not.
Why is this? Because the AUMF says we’re at war with them. Thus they are not criminals, but PoW’s. Got it?
I know this is the internet, sticks and stones and all that, but you are embarrassing yourself. It’s not helping you make an argument, no matter what it might be doing for your low self esteem.
Stefan
The people in Gitmo can be detained until somebody declares an end to the “War on Terror”, as long as they get to try and prove they are not terrorists correct?
No, they don’t, because the “War on Terror” isn’t a real war, it’s a marketing phrase. The laws of war allow you to detain combatants in a war until the war ends, that’s true. But the Guantanamo prisoners and others like them aren’t combatants in a war — they’re criminals. They’re involved in crime, not warfighting. What you say above would be like saying that you could detain any low-level drug dealer until somebody declares an end to the War on Drugs, or hold any mugger or carjacker until the War on Crime is finally over. It’s absurd.
J.W. Hamner
I understand that argument, and I don’t even really disagree with it… believe it or not, I am a liberal… I think in most instances, a law enforcement approach is better, but from my, much derided Not A Lawyer perch, it seems that so far the Supreme Court has said they’re combatants in a war.
I’m pretty sure they’ve said that the fact that Congress authorized “all necessary and appropriate force” vs. “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” means that the Prez can hold them as enemy combatants, which has little to do with the criminal justice system.
Jordan
@Stefan
Hamner is right. The Supreme Court has ruled that these people are combatants, and that the ongoing hostilities against al Qaeda (globally) and the Taliban (in Af/Pak) constitute a war.
The “War on Terror” of course isn’t a real war…it’s a US gov’t effort to diminish global terrorism. In other words, it’s a global effort against a certain tactic of war. But the fighting going on right now to disrupt and kill al Qaeda members is a war, and prisoners taken from that war can be lawfully detained for the duration of that conflict.
The US has detained prisoners of war and other types of combatant in every conflict we’ve been involved in. There are literally centuries of precedent.
Bush admin folks tried to circumvent Geneva Convention rules on treatment & legal rights of detainees, and SCOTUS slapped them down, ruling that we have to abide by Geneva, UCMJ, and the Constitution.
Figuring out just how to do that is now Obama’s problem. And it is a big problem. See the famous Onion headline.