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Commentary :: Civil & Human Rights

Facts and myths about Obama's preventive detention proposal

Is a system of indefinite detention with no charges a standard or radical idea?
May. 22, 2009

[Updated below - Update II (Interview with ACLU) - Update III - Update IV -
Update V - Update VI]

In the wake of Obama's speech yesterday, there are vast numbers of new converts
who now support indefinite "preventive detention." It thus seems constructive
to have as dispassionate and fact-based discussion as possible of the
implications of "preventive detention" and Obama's related detention proposals
(military commissions). I'll have a podcast discussion on this topic a little
bit later today with the ACLU's Ben Wizner, which I'll add below, but until
then, here are some facts and other points worth noting:

(1) What does "preventive detention" allow?

It's important to be clear about what "preventive detention" authorizes. It
does not merely allow the U.S. Government to imprison people alleged to have
committed Terrorist acts yet who are unable to be convicted in a civilian court
proceeding. That class is merely a subset, perhaps a small subset, of who the
Government can detain. Far more significant, "preventive detention" allows
indefinite imprisonment not based on proven crimes or past violations of law,
but of those deemed generally "dangerous" by the Government for various reasons
(such as, as Obama put it yesterday, they "expressed their allegiance to Osama
bin Laden" or "otherwise made it clear that they want to kill Americans").
That's what "preventive" means: imprisoning people because the Government
claims they are likely to engage in violent acts in the future because they are
alleged to be "combatants."

Once known, the details of the proposal could -- and likely will -- make this
even more extreme by extending the "preventive detention" power beyond a handful
of Guantanamo detainees to anyone, anywhere in the world, alleged to be a
"combatant." After all, once you accept the rationale on which this proposal is
based -- namely, that the U.S. Government must, in order to keep us safe,
preventively detain "dangerous" people even when they can't prove they violated
any laws -- there's no coherent reason whatsoever to limit that power to people
already at Guantanamo, as opposed to indefinitely imprisoning with no trials all
allegedly "dangerous" combatants, whether located in Pakistan, Thailand,
Indonesia, Western countries and even the U.S.

(2) Are defenders of Obama's proposals being consistent?

During the Bush years, it was common for Democrats to try to convince
conservatives to oppose Bush's executive power expansions by asking them: "Do
you really want these powers to be exercised by Hillary Clinton or some liberal
President?"

Following that logic, for any Democrat/progressive/liberal/Obama supporter who
wants to defend Obama's proposal of "preventive detention," shouldn't you first
ask yourself three simple questions:

(a) what would I have said if George Bush and Dick Cheney advocated a law
vesting them with the power to preventively imprison people indefinitely and
with no charges?;

(b) when Bush and Cheney did preventively imprison large numbers of people, was
I in favor of that or did I oppose it, and when right-wing groups such as
Heritage Foundation were alone in urging a preventive detention law in 2004, did
I support them?; and

(c) even if I'm comfortable with Obama having this new power because I trust him
not to abuse it, am I comfortable with future Presidents -- including
Republicans -- having the power of indefinite "preventive detention"?

(3) Questions for defenders of Obama's proposal:

There are many claims being made by defenders of Obama's proposals which seem
quite contradictory and/or without any apparent basis, and I've been searching
for a defender of those proposals to address these questions:

Bush supporters have long claimed -- and many Obama supporters are now insisting
as well -- that there are hard-core terrorists who cannot be convicted in our
civilian courts. For anyone making that claim, what is the basis for believing
that? In the Bush era, the Government has repeatedly been able to convict
alleged Al Qaeda and Taliban members in civilian courts, including several (Ali
al-Marri, Jose Padilla, John Walker Lindh) who were tortured and others
(Zacharais Moussaoui, Padilla) where evidence against them was obtained by
extreme coercion. What convinced you to believe that genuine terrorists can't
be convicted in our justice system?

For those asserting that there are dangerous people who have not yet been given
any trial and who Obama can't possibly release, how do you know they are
"dangerous" if they haven't been tried? Is the Government's accusation enough
for you to assume it's true?

Above all: for those justifying Obama's use of military commissions by arguing
that some terrorists can't be convicted in civilian courts because the evidence
against them is "tainted" because it was obtained by Bush's torture, Obama
himself claimed just yesterday that his military commissions also won't allow
such evidence ("We will no longer permit the use of evidence -- as evidence
statements that have been obtained using cruel, inhuman, or degrading
interrogation methods"). How does our civilian court's refusal to consider
evidence obtained by torture demonstrate the need for Obama's military
commissions if, as Obama himself claims, Obama's military commissions also won't
consider evidence obtained by torture?

Finally, don't virtually all progressives and Democrats argue that torture
produces unreliable evidence? If it's really true (as Obama defenders claim)
that the evidence we have against these detainees was obtained by torture and is
therefore inadmissible in real courts, do you really think such unreliable
evidence -- evidence we obtained by torture -- should be the basis for
concluding that someone is so "dangerous" that they belong in prison
indefinitely with no trial? If you don't trust evidence obtained by torture,
why do you trust it to justify holding someone forever, with no trial, as
"dangerous"?

(4) Do other countries have indefinite preventive detention?

Obama yesterday suggested that other countries have turned to "preventive
detention" and that his proposal therefore isn't radical ("other countries have
grappled with this question; now, so must we"). Is that true?

In June of last year, there was a tumultuous political debate in Britain that
sheds ample light on this question. In the era of IRA bombings, the British
Parliament passed a law allowing the Government to preventively detain terrorist
suspects for 14 days -- and then either have to charge them or release them. In
2006, Prime Minister Tony Blair -- citing the London subway attacks and the need
to "intervene early before a terrorist cell has the opportunity to achieve its
goals" -- wanted to increase the preventive detention period to 90 days, but MPs
from his own party and across the political spectrum overwhelmingly opposed
this, and ultimately increased it only to 28 days.

In June of last year, Prime Minister Gordon Brown sought an expansion of this
preventive detention authority to 42 days -- a mere two weeks more. Reacting to
that extremely modest increase, a major political rebellion erupted, with large
numbers of Brown's own Labour Party joining with Tories to vehemently oppose it
as a major threat to liberty. Ultimately, Brown's 42-day scheme barely passed
the House of Commons. As former Prime Minister John Major put it in opposing
the expansion to 42 days:

It is hard to justify: pre-charge detention in Canada is 24 hours; South Africa,
Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey 7½ days.

By rather stark and extreme contrast, Obama is seeking preventive detention
powers that are indefinite -- meaning without any end, potentially permanent.
There's no time limit on the "preventive detention." Compare that power to the
proposal that caused such a political storm in Britain and what these other
governments are empowered to do. The suggestion that indefinite preventive
detention without charges is some sort of common or traditional scheme is
clearly false.

(5) Is this comparable to traditional POW detentions?

When Bush supporters used to justify Bush/Cheney detention policies by arguing
that it's normal for "Prisoners of War" to be held without trials, that argument
was deeply misleading. And it's no less misleading when made now by Obama
supporters. That comparison is patently inappropriate for two reasons: (a) the
circumstances of the apprehension, and (b) the fact that, by all accounts, this
"war" will not be over for decades, if ever, which means -- unlike for
traditional POWs, who are released once the war is over -- these prisoners are
going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a
real battlefield, wearing a uniform, while engaged in fighting. The potential
for error and abuse in deciding who was a "combatant" was thus minimal. By
contrast, many of the people we accuse in the "war on terror" of being
"combatants" aren't anywhere near a "battlefield," aren't part of any army,
aren't wearing any uniforms, etc. Instead, many of them are picked up from
their homes, at work, off the streets. In most cases, then, we thus have little
more than the say-so of the U.S. Government that they are guilty, which is why
actual judicial proceedings before imprisoning them is so much more vital than
in the standard POW situation.

Anyone who doubts that should just look at how many Guantanamo detainees were
accused of being "the worst of the worst" yet ended up being released because
they did absolutely nothing wrong. Can anyone point to any traditional POW
situation where so many people were falsely accused and where the risk of false
accusations was so high? For obvious reasons, this is not and has never been a
traditional POW detention scheme.

During the Bush era, that was a standard argument among Democrats, so why should
that change now? Here is what Anne-Marie Slaughter -- now Obama's Director of
Policy Planning for the State Department -- said about Bush's "POW" comparison
on Fox News on November 21, 2001:

Military commissions have been around since the Revolutionary War. But they've
always been used to try spies that we find behind enemy lines. It's normally a
situation, you're on the battlefield, you find an enemy spy behind your lines.
You can't ship them to national court, so you provide a kind of rough
battlefield justice in a commission. You give them the best process you can, and
then you execute the sentence on the spot, which generally means executing the
defendant.

That's not this situation. It's not remotely like it.

As for duration, the U.S. government has repeatedly said that this "war" is so
different from standard wars because it will last for decades, if not
generations. Obama himself yesterday said that "unlike the Civil War or World
War II, we can't count on a surrender ceremony to bring this journey to an end"
and that we'll still be fighting this "war" "a year from now, five years from
now, and -- in all probability -- 10 years from now." No rational person can
compare POW detentions of a finite and usually short (2-5 years) duration to
decades or life in a cage. That's why, yesterday, Law Professor Diane Marie
Amann, in The New York Times, said this:

[Obama] signaled a plan by which [Guantanamo detainees] — and perhaps other
detainees yet to be arrested? — could remain in custody forever without charge.
There is no precedent in the American legal tradition for this kind of
preventive detention. That is not quite right: precedents do exist, among them
the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s,
but they are widely seen as low points in America's history under the
Constitution.

There are many things that can be said about indefinitely imprisoning people
with no charges who were not captured on any battlefield, but the claim that
this is some sort of standard or well-established practice in American history
is patently false.

(6) Is it "due process" when the Government can guarantee it always wins?

If you really think about the argument Obama made yesterday -- when he described
the five categories of detainees and the procedures to which each will be
subjected -- it becomes manifest just how profound a violation of Western
conceptions of justice this is. What Obama is saying is this: we'll give real
trials only to those detainees we know in advance we will convict. For those we
don't think we can convict in a real court, we'll get convictions in the
military commissions I'm creating. For those we can't convict even in my
military commissions, we'll just imprison them anyway with no charges
("preventively detain" them).

Giving trials to people only when you know for sure, in advance, that you'll get
convictions is not due process. Those are called "show trials." In a healthy
system of justice, the Government gives everyone it wants to imprison a trial
and then imprisons only those whom it can convict. The process is constant
(trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite: in his scheme, it is the outcome that is constant
(everyone ends up imprisoned), while the process varies and is determined by the
Government (trials for some; military commissions for others; indefinite
detention for the rest). The Government picks and chooses which process you get
in order to ensure that it always wins. A more warped "system of justice" is
hard to imagine.

(7) Can we "be safe" by locking up all the Terrorists with no charges?

Obama stressed yesterday that the "preventive detention" system should be
created only through an act of Congress with "a process of periodic review, so
that any prolonged detention is carefully evaluated and justified." That's
certainly better than what Bush did: namely, preventively detain people with no
oversight and no Congressional authorization -- in violation of the law. But as
we learned with the Military Commissions Act of 2006 and the Protect America Act
of 2007, the mere fact that Congress approves of a radical policy may mean that
it is no longer lawless but it doesn't make it justified. As Professor Amann
put it: "no amount of procedures can justify deprivations that, because of
their very nature violate the Constitution's core guarantee of liberty." Dan
Froomkin said that no matter how many procedures are created, that's "a
dangerously extreme policy proposal."

Regarding Obama's "process" justification -- and regarding Obama's primary
argument that we need to preventively detain allegedly dangerous people in order
to keep us safe -- Digby said it best:

We are still in a "war" against a method of violence, which means there is no
possible end and which means that the government can capture and imprison anyone
they determine to be "the enemy" forever. The only thing that will change is
where the prisoners are held and few little procedural tweaks to make it less
capricious. (It's nice that some sort of official committee will meet once in a
while to decide if the war is over or if the prisoner is finally too old to
still be a "danger to Americans.")

There seems to be some misunderstanding about Guantanamo. Somehow people have
gotten it into their heads is that it is nothing more than a symbol, which can
be dealt with simply by closing the prison. That's just not true. Guantanamo is
a symbol, true, but it's a symbol of a lawless, unconstitutional detention and
interrogation system. Changing the venue doesn't solve the problem.

I know it's a mess, but the fact is that this isn't really that difficult,
except in the usual beltway kabuki political sense. There are literally tens of
thousands of potential terrorists all over the world who could theoretically
harm America. We cannot protect ourselves from that possibility by keeping the
handful we have in custody locked up forever, whether in Guantanamo or some
Super Max prison in the US. It's patently absurd to obsess over these guys like
it makes us even the slightest bit safer to have them under indefinite lock and
key so they "can't kill Americans."

The mere fact that we are doing this makes us less safe because the complete
lack of faith we show in our constitution and our justice systems is what fuels
the idea that this country is weak and easily terrified. There is no such thing
as a terrorist suspect who is too dangerous to be set free. They are a dime a
dozen, they are all over the world and for every one we lock up there will be
three to take his place. There is not some finite number of terrorists we can
kill or capture and then the "war" will be over and the babies will always be
safe. This whole concept is nonsensical.

As I said yesterday, there were some positive aspects to Obama's speech. His
resolve to close Guantanamo in the face of all the fear-mongering, like his
release of the OLC memos, is commendable. But the fact that a Democratic
President who ran on a platform of restoring America's standing and returning to
our core principles is now advocating the creation of a new system of indefinite
preventive detention -- something that is now sure to become a standard view of
Democratic politicians and hordes of Obama supporters -- is by far the most
consequential event yet in the formation of Obama's civil liberties policies.

UPDATE: Here's what White House Counsel Greg Craig told The New Yorker's Jane
Mayer in February:

"It's possible but hard to imagine Barack Obama as the first President of the
United States to introduce a preventive-detention law," Craig said. "Our
presumption is that there is no need to create a whole new system. Our system is
very capable."

"The first President of the United States to introduce a preventive-detention
law" is how Obama's own White House Counsel described him. Technically
speaking, that is a form of change, but probably not the type that many Obama
voters expected.

UPDATE II: Ben Wizner of the ACLU's National Security Project is the lead lawyer
in the Jeppesen case, which resulted in the recent rejection by the 9th Circuit
Court of Appeals of the Bush/Obama state secrets argument, and also co-wrote
(along with the ACLU's Jameel Jaffer) a superb article in Salon in December
making the case against preventive detention. I spoke with him this morning for
roughly 20 minutes regarding the detention policies proposed by Obama in
yesterday's speech. It can be heard by clicking PLAY on the recorder below. A
transcript will be posted shortly.

UPDATE III: Rachel Maddow was superb last night -- truly superb -- on the topic
of Obama's preventive detention proposal:

UPDATE IV: The New Yorker's Amy Davidson compares Obama's detention proposal to
the internment of Japanese-Americans during World War II (as did Professor
Amann, quoted above). Hilzoy, of The Washington Monthly, writes: "If we don't
have enough evidence to charge someone with a crime, we don't have enough
evidence to hold them. Period" and "the power to detain people without filing
criminal charges against them is a dictatorial power." Salon's Joan Walsh
quotes the Center for Constitutional Rights' Vincent Warren as saying: "They're
creating, essentially, an American Gulag." The Philadelphia Inquirer's Will
Bunch says of Obama's proposal: "What he's proposing is against one of this
country's core principles" and "this is why people need to keep the pressure on
Obama -- even those inclined to view his presidency favorably."

UPDATE V: The Atlantic's Marc Ambinder -- who is as close to the Obama White
House as any journalist around -- makes an important point about Obama that I
really wish more of his supporters would appreciate:

[Obama] was blunt [in his meeting with civil libertiarians]; the [military
commissions] are a fait accompli, so the civil libertarians can either help
Congress and the White House figure out the best way to protect the rights of
the accused within the framework of that decision, or they can remain on the
outside, as agitators. That's not meant to be pejorative; whereas the White
House does not give a scintilla of attention to its right-wing critics, it does
read, and will read, everything Glenn Greenwald writes. Obama, according to an
administration official, finds this outside pressure healthy and useful.

Ambinder doesn't mean me personally or exclusively; he means people who are
criticizing Obama not in order to harm him politically, but in order to pressure
him to do better. It's not just the right, but the duty, of citizens to
pressure and criticize political leaders when they adopt policies that one finds
objectionable or destructive. Criticism of this sort is a vital check on
political leaders -- a key way to impose accountability -- and Obama himself has
said as much many times before.

It has nothing to do with personalities or allegiances. It doesn't matter if
one "likes" or "trusts" Obama or thinks he's a good or bad person. That's all
irrelevant. The only thing that matters is whether one thinks that the actions
he's undertaking are helpful or harmful. If they're harmful, one should
criticize them. Where, as here, they're very harmful and dangerous, one should
criticize them loudly. Obama himself, according to Ambinder, "finds this
outside pressure healthy and useful." And it is. It's not only healthy and
useful but absolutely vital.

UPDATE VI: Bearing in mind what Obama repeatedly pledged to do while running,
this headline from The New York Times this morning is rather extraordinary:

As Greg Craig put it: "hard to imagine Barack Obama as the first President of
the United States to introduce a preventive-detention law."

-- Glenn Greenwald
 
 

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