Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
My colleague Spencer Ackerman has been covering Senate hearings on how to handle detainees for the Washington Independent and reports this disturbing bit of news that the administration is now going even beyond what the Bush administration did and is claiming that they have the authority to continue to imprison terror detainees even after they've been acquitted by a court or military tribunal:
Defense Department General Counsel Jeh Johnson moved the Obama administration into new territory from a civil liberties perspective. Asked by Sen. Mel Martinez (R-Fla.) the politically difficult but entirely fair question about whether terrorism detainees acquitted in courts could be released in the United States, Johnson said that "as a matter of legal authority," the administration's powers to detain someone under the law of war don't expire for a detainee after he's acquitted in court. "If you have authority under the law of war to detain someone" under the Supreme Court's Hamdi ruling, "that is true irrespective of what happens on the prosecution side."Martinez looked surprised. "So the prosecution is moot?" he asked.
"No, no, not in my judgment," Johnson said. But the scenario he outlined strongly suggested it is. If an administration review panel "determines this person is a security threat" and "for some reason is not convicted of a lengthy prison sentence, I think we have the authority to continue to detain someone" under "law of war authority" as granted by the September 2001 Authorization to Use Military Force, Johnson said.
It just keeps getting worse.
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Forget "meet the new boss, same as the old boss." This is "meet the new boss, worse than the old boss."
Posted by: Joshua Zelinsky | July 9, 2009 11:35 AM
To be fair, I doubt Obama has any real power. He's just another idealist faced with the reality that when your president, you are the puppet of the rich and powerful.
I seriously doubt the possibility that a country can reverse it's decline without reaching the bottom first. Has there been any in history that have managed it?
Posted by: Myrdek | July 9, 2009 11:57 AM
Change that law.
Posted by: rpsms | July 9, 2009 11:57 AM
Fixed that for you.
Posted by: Johnny Clamboat | July 9, 2009 12:15 PM
"Give me liberty or give me death" has been diluted to "Give me liberty, so long as it would not entail the slightest bit of risk, actual or hypothetical, to my safety."
Posted by: DaveL | July 9, 2009 12:33 PM
I don't think that bit about Obama going beyond Bush is accurate. The Pentagon during Bush also asserted that it could hold continue to hold enemy combatants even after they'd been acquitted. In 2002 William Haynes and Douglas Feith said as much. From the NY Times article that reported it.
Mr. Haynes also defended the idea. "When somebody's trying to kill you or your people, and you capture them, you can hold them," he said.
"We are within our rights," Mr. Haynes added, "and I don't think anyone disputes it, that we may hold enemy combatants for the duration of the conflict. And the conflict is still going and we don't see an end in sight right now."
The Bush administration maintained that position throughout Bush's presidency. More recently, June of 2008, when the trial of Omar Khadr was on the horizon, the DoD said that even if acquitted they may continue to detain him "in order to mitigate the threat posed by the detainee."
So I'd say this is another example of Obama being as bad as Bush when it comes to liberty, but not worse.
Posted by: Abby Normal | July 9, 2009 12:41 PM
This kind of thing isn't particularly new. Haven't courts said that sexual offenders can be held in detention even after their sentences were fulfilled?
Perverts and terrorists are subhuman. Just like homos, queers, and jews, Allah willing. And women, of course.
Posted by: Gingerbaker | July 9, 2009 12:43 PM
The blockquote should have included the two paragraphs after the one that was. That is, all three paragraphs are from the NY Time article.
Posted by: Abby Normal | July 9, 2009 12:45 PM
Well, the give me liberty part is still going strong. Just me, not the people who scare me.
Posted by: Scott Hanley | July 9, 2009 12:46 PM
This is just part of the "enemy combatant" dodge. When it is convenient, we talk about them as though they have no rights; if rights are nonetheless asserted, then we treat them as analogous to POWs. This makes dealing with them (or not) very convenient. Classic equivocation.
The bad news is that this isn't even the most egregious example of this type of reasoning this week. The various conservatives (in National Review and elsewhere) who claim that the Uyghur riots this week prove that all Uyghurs are terrorists and therefore we were justified in holding the 7 in Gitmo forever. Yeah.
Posted by: kehrsam | July 9, 2009 1:03 PM
"...convicted of a lengthy prison sentence..."
IANAL, but is that even possible? Serving a lengthy prison sentence is a crime now? No wonder our jails are overcrowded.
Posted by: NoAstronomer | July 9, 2009 1:29 PM
I've been as eager as anyone to criticize Obama's positions in court since he took office. However, I don't hear anyone offering a viable remedy for the Obama Administration if:
1) A suspected enemy of the state is found not guilty of charges that were brought before the court,
and
2) the Administration has sound reasons to believe the detainee continues to be an enemy of the state and threat to national security.
What are some recommended remedies instead of what Obama proposes?
I'm not saying Obama's correct on this, I don't know the right answer. I just think this issue is not so simple that we should passively accept criticism of Obama's argument without hearing a cogent positive argument on what Obama should do in these cases.
Posted by: Michael Heath | July 9, 2009 3:05 PM
Michael,
What should we do with a suspected serial rapist who is found not guilty, but the authorities have sound reasons for believing they'll commit rape if released?
Posted by: Abby Normal | July 9, 2009 3:26 PM
Preemptive imprisonment doesn't sound like a good idea to me.
Posted by: Owen | July 9, 2009 3:32 PM
Recommended remedies for enemies of the state?
Let's see, how about a specialized indefinite detention facility for those "who endanger state security" because "in the long run it is not possible to keep individual functionaries in the state prisons without overburdening these prisons, and on the other hand these people cannot be released because attempts have shown that they persist in their efforts to agitate and organise as soon as they are released."
What could possibly go wrong?
Posted by: windy | July 9, 2009 4:11 PM
Is Johnson correct? I.e., is he interpreting the law correctly? If so, it's up to either congress to amend the law or the courts to declare it unconstitutional. Those would be the preferred remedies anyway.
Posted by: Taz | July 9, 2009 4:35 PM
Taz, I believe he is correct. Look at it this way. Lets say it's WW2 and we are holding a Nazi soldier as a POW. Someone accuses the prisoner of having murdered a civilian family before his capture. He's tried by military tribunal and acquitted. He's still a POW.
The position of the DoD is that Enemy Combatants (ECs) are just like POWs in that respect. In fact they say ECs are just like POWs in every way that doesn't benefit the them, like the rights guaranteed by the Geneva Conventions. Though the DoD tends not to state it quite that way.
Posted by: Abby Normal | July 9, 2009 4:48 PM
Abby Normal @ 13 stated:
I do not find this analogous to the issue at hand. The issue is far broader in scope given the characteristics and context within which these people were detained, which in itself is complex, e.g., on the battlefield but without a uniform, in cities far from any battlefield - but with suspicion they are terrorism in the act of conspiracy against America or our allies, etc.
Abby Normal @ 17 stated:
I'm uncomfortable simply declaring them POWs as well. Not for the same reasons the Bush Administration did, which was to avoid their obligation to defend and not violate the detainees' rights, but instead because it's my understanding that the laws regarding POWs assume a bright line understanding that the detainee is in fact an enemy soldier and also assumes that wars end in a matter of years, not decades or centuries.
So while I'm uncomfortable with Obama's position, I have not heard a superior argument on what to do. Which is why I disagree with Ed and others we can criticize Obama's position without offering an alternative argument.
Posted by: Michael Heath | July 9, 2009 5:15 PM
So I want to be completely clear on this:
The Administration, based on its own judgment, decides that someone is an Enemy of the State. Based on that judgment, the subject is forcibly detained without habeas corpus. At some point a court rules that habeas corpus applies, and a trial is held, wherein the detainee is acquitted of all charges brought -- but is still kept in detention without recourse.
And this is legal.
1) What was the point of the trial? It would seem to have been to no effect.
2) What is to prevent the Administration from deciding under this doctrine that Dick Cheny is an Enemy of the State? After all, he's proposing that the USA needs a major explosion to "save" it.
3) Assuming that there's some "citizenship" fine print there, what's to keep the Administration (aside from PR issues) from deciding that Paul McCartney (or anyone else) is an Enemy of the State and locking him away for the rest of his life?
(I would have picked a noncitizen PITA but blanked out.)
Posted by: D. C. Sessions | July 9, 2009 5:36 PM
D.C. Sessions: Then there is no such thing as the rule of law, and the devil will have his due.
Posted by: kehrsam | July 9, 2009 5:42 PM
What characteristics concern you? Why are they significantly different? I ask not because I don't see any differences. But I don't see anything particularly significant.
As am I. My feeling is that they should be treated like any other accused criminals.
Posted by: Abby Normal | July 9, 2009 5:42 PM
IANAL either, but the authority seems to be asserted under the oxymoronic law of war. However, the Constitution, Article I, Section 3, says that Congress has the sole power to declare war. In the present situations, it has not done so.
Posted by: JakeR | July 9, 2009 6:03 PM
@Micheal Heath #18
There would seem to be adequate laws in place for people falling into this category, i.e. criminal law covering conspiracy to commit X, Y and Z. Additionally as members of organized crime groups you might even be able to peg them with the organized crime laws or similar. The problem is proof, and that is where I object entirely to the approach taken, which is that detention without proof is valid at all. Either you have valid proof of criminal behaviour, or you don't. If you don't you have to take the risk that the person may commit crimes against you later and deal with them at that point. There isn't leeway here under the rule of law.
It assumes that there is a war... not a 'war on terror', 'war on crime' or 'war on poverty'. Rhetoric does not make a war, as pointed out by JakeR.
@JakeR #22
So what we need to do is for congress to declare war on Terror so we can detain them as POWs under the laws of war?
I think we need to write to our congresscritters and encourage them to formally declare war on Terror so that the Terrorists (commonly accepted name for citizens of Terror) can be detained as POWs.
This makes sense, no?
Ps. Prisoner exchanges would then be possible too, would be clever considering the recently captured US trooper. (Makes economic sense too, trade one expensive to keep prisoner for one expensive to train troop).
Posted by: rsm | July 9, 2009 8:21 PM
@rsm
I think declaring war on an methodology, rather than a nation or group, is a really bad idea. The long term implications are chilling. Think perpetual war. It's also largely superfluous. A war need not be declared in order for the Geneva Conventions and other similar treaties to invoked. Nor would a formal declaration significantly increase our impetus to invoke them. Mostly it would just give the Executive yet more power to trample our civil rights.
While it true that only Congress can declare war, the Constitution gives the President the power to repel sudden attacks without the explicit approval of Congress. Just about any anti-terrorism action I can imagine could thus be justified. What is terrorism if not a sudden attack?
I know I'm getting a bit off topic. But I think interesting, the US has only declared war at 5 points in history. They've authorized the use of military force another dozen or so times. Yet we have taken military action against other nations over 125 times. The Supreme Court has consistently upheld the President's power to do so.
Posted by: Abby Normal | July 9, 2009 9:45 PM
rsm stated:
Not even close. I was referring specifically to the detainees covered by the case discussed in this blog post. These people are picked up either in a foreign field of battle, though not clearly identified as soldiers of a sovereign government, or people our intelligence agencies pick up (or have picked up) outside our country who are not in the field of battle.
Our criminal laws are in no way structured to deal with these types of issues since this occurs outside our borders. Of course our criminal laws applies for persons picked up in our sovereign domain, but that's not in play here.
In addition, I have yet to see even one argument made on how to deal with these characters given our criminal courts system often doesn't have jurisdiction or doesn't extend to the types of acts these people allegedly caused that have them remaining detainees after interrogations, nor do POW policies easily apply unless you think it's OK to hold them until some so-called "War on Terror" is over (especially if they are picked up in what is not classified as a war zone, such as Pakistan) - which I do not. This is a dilemma I don't think this forum is adequately respecting.
Posted by: Michael Heath | July 9, 2009 9:54 PM
Hey! That explains the whole "paramilitary police" thing. They're (as the lyric goes) "soldiers in the war on poverty." Out there on the front lines, they occasionally sight enemy combatants and have to do what a soldier does: kill 'em if they can't be safely captured.
Posted by: D. C. Sessions | July 9, 2009 10:26 PM
Wouldn't those be Terrorians?
--
How about you let them go after they've been acquitted and "look forward" like Obama has no problem doing with your domestic war criminals?
It actually makes me physically sick to read this kind of oh-so-concerned excuse-mongering for kinder, gentler fascism. "But what else are we supposed to do?" Bleh.
This discussion was about the people who have been acquitted of those allegations. So presumably there is at least the pretense that there was jurisdiction in these cases.
Posted by: windy | July 10, 2009 3:28 AM
windy stated:
Let them go where? Again, this is about detainees picked up outside our borders. You seem to be suggesting that detainees believed to be terrorists, who are acquitted of certain charges, should now be let go on U.S. streets? Is that what you are arguing we do, if not, what?
A good example is Khalid Sheik Mohammed. We know he's was an operational leader for al Qaeda. We also know, given Bush's torture of him, that we probably couldn't get a conviction of him in a criminal trial given his rights have been grossly violated. It appears from this perspective you are arguing we release him into the U.S. An absurd conclusion from what little you've divulged of your point? Yes, so expand on your point.
Again, I have yet to see one rational rebuttal to Obama's dilemma.
In addition, I believe most of us in this forum do not support Obama not aggressively prosecuting those who conspired and tortured on behalf of the U.S.
Posted by: Michael Heath | July 10, 2009 6:59 AM
What about OJ Simpson? What about all the countless gang members who serve their time and are released, despite the recidivism rate in the USA.
If you think that KSM is really that much of a threat to the world, then have the courage of your convictions. Do what's necessary and take the consequences.
This "we have a system of law, and this case gets undesirable outcomes if we follow it -- therefore, let's jettison our system of law" rationalization does more harm to the USA than a battalion of terrorists.
Posted by: D. C. Sessions | July 10, 2009 8:34 AM
Terrorism, conspiring to commit terrorism, and similarly related crimes are within the jurisdiction of our federal criminal court system. Though perhaps I should have been clearer when I said the Getmo detainees should be treated like other criminals. In war there are times when it's appropriate for the military, rather than the civilian courts, to prosecute an accused criminal. The Nazi soldier in my previous example is one example.
So some detainees may be tried in civilian court, other by military court. But anyone being held as a terroristic threat should be tried and if acquitted, released.
In the case of Taliban fighters not considered terrorist if there are any in Getmo, they should be dealt with as guerrilla fighters as outlined in the Geneva Convention. That is, they should be held as POWs until the fighting in Afghanistan is done. They should then be returned to Afghanistan where the government there can deal with them. Non-terrorist Iraqi insurgents should be handled similarly.
Posted by: Abby Normal | July 10, 2009 8:56 AM
Michael,
For all of your well reasoned arguments in the past, this particular case dealing with terrorists seems to be a different bag for you. We are supposed to be a nation of laws and, as such, we should be beholden to those laws even when we don't like the outcomes. If KSM goes to trial and gets acquitted because of the stupidity of the last administration, then he should be let go. If we were dumb enough to bring him into US sovereignty, then we have to let him go here. The US has plenty of capacity for watching people. If we still believe he's a danger to the US, have him observed and build a new case against him to try and convict him. We do this regularly all the time, hell there were a few guys picked up just recently trying to attack an army base. They aren't going anywhere. This same line of reasoning applies to everyone we pick up as 'terrorists.' If you want to make a distinction about those picked up in Afghanistan or Iraq while actually engaged in battle with US forces, that would be to make them POWs as outlined in the Geneva Conventions.
Our ability to follow our laws even when the going gets tough is what could make America a leader again. Until we decide to do that, we're just another bunch of hypocrites.
Posted by: Scott Reese | July 10, 2009 9:24 AM
Sorry about the numerous errors of spelling and grammar in my last post. I should know better than to post pre-coffee.
I see I missed the question of where to release acquitted detainees. In cases where they cannot be safely returned to their country of origin, several countries have stepped up and agree to help us out, Australia, Switzerland, and France to name but a few. Saudi Arabia has offered a rehab program where former detainees can receive counseling, financial payments, and help getting a job. Worst case scenario, Venezuela says they'll take them.
In the interest of national security we have a right to deny entry to any non-citizen we suspect to be a threat. So I have no problem with shipping them out after acquittal and baring them ever returning, even if they have been found not guilty.
Posted by: Abby Normal | July 10, 2009 10:15 AM
Abby Normal stated:
60 Minutes did a great report on the Saudi program. I applaud the Saudis, very responsible and very liberal of them - seriously. They not only took those where there was no evidence of terrorist acts, but even some small-timers who were involved. But the detainees I'm talking about do not fit this program, which is a primary reason they're still in Gitmo.
Posted by: Michael Heath | July 10, 2009 1:06 PM
Then I reiterate my request that you be more specific. Your outline of the problem has been rather vague. But you're asking for very specific solutions. Perhaps some examples of problem cases would help move us forward.
Posted by: Abby Normal | July 10, 2009 1:22 PM
Then maybe we shouldn't illegally kidnap and rendition foreign nationals? It seems like kind of a "you break it, you bought it" situation.
Incidentally, Ayers is a free man today for the very same reasons these terrorists probably couldn't be convicted. How is the situation different when it's a foreign terrorist instead of a domestic terrorist?
Posted by: Dan L. | July 10, 2009 1:34 PM
@Abby #24
My apologies if it wasn't entirely clear that there was much tongue-in-cheek and sarcasm in that part of the post. I think it's a horrible and impossible idea, and in part that the rhetoric on these issues is part of the problem.
@Micheal #25 and following
These were legal and valid detentions, no?
I.e. these prisoners were arrested either in American jurisdictions, or in jurisdictions from which they were extradited under proper legal procedures?
If not, if we are to even remotely stick to our principle of the rule of law we'll have to a) classify them as POWs (unworkable as previously pointed out) or b) give them a fair trial and hope that the government hasn't screwed the pooch as badly as they do on a regular basis in simple police cases (which they have in spades in most of these cases). In the case of b) you'll have to let them go if that is what the verdict is. That these people are more dangerous to the US than any other criminal is not entirely clear, and to be honest they are much less dangerous to the US than these tendencies we're seeing to constantly argue these cases using special pleading.
I.e. This case is unique because of . They aren't. It's just another case of 'why waste a good crisis', people seem to get all worked into knots because of the special pleading.
Calling someone bad names does not make it so, similarly, stating that the government is infallible when making these determinations is equally problematic. They are fallible, and the courts are what we use to ensure some modicum level of accountability.
The only real issue I see is where to release them if they are still considered a threat, which they may be.
Ideally, and if you want maximum positive PR you make the trial public, wash all your dirty laundry and release them back where you caught them and with the seven years of owed back pay at whatever job they held before you bagged them. If Obama wants credibility, that'll give him some. Additionally you can do as Abby (#32) suggests and just deny them reentry.
Posted by: rsm | July 10, 2009 6:18 PM
I find these arguments hopelessly naive when it comes to the detention of people gathered by military or intelligence sources outside our borders. For example, how do we disposition Hamdi and Khalid Sheik Mohammed?
Posted by: Michael Heath | July 10, 2009 8:17 PM
@rsm
I totally missed the the location of your tongue. My sense of humor has been mostly absent the last few days.
@Michael Heath
Yaser Hamdi was released to Saudi Arabia nearly 5 years ago. I haven't heard anything about him since then. Is there a problem I'm not aware of?
Khalid Sheik Mohammed has plead guilty. The main question now is if he's mental competent to enter such a plea. I think there's very little chance that he'll escape justice in the US, even with the Bush bungling. But for the sake of argument lets say he does. He's wanted in a dozen other countries. We can extradite him.
Posted by: Abby Normal | July 10, 2009 11:13 PM
Sorry Michael, but we made this bed - we need to fucking well deal with it. It really sucks that we're stuck in the position of possibly having to release terrorists, but that is where the decisions of the bush regime put us. We cannot simply abandon the rule of law because of the complete bungling of the previous administration.
And we don't have to release them into the U.S. They aren't citizens and have no more right to be here now, than they did before we picked them up, detained them indefinitely and tortured them. There are countries willing to take them in and offer them some help in reintegrating into society. Hopefully they will also get some help in suing us - at least for the cost of helping them reintegrate.
And yes, I mean that for the ones who are "guilty" as well as those who were just in the wrong place at the wrong time. We are a nation where the rule of law is supposed to fucking mean something. We ignored it for eight years under a fucking cowboy president, threw out the cowboys and hired someone we believed respects the rule of law that we hold so dear. Only it turns out he is more of the same and it is your fear of the terrorists going free that allows them to justify it.
Bottom line - we fucked up and because we fucked up, terrorists might - or at least should go free. There is absolutely no difference between this and Abby's serial rapist analogy, except possibly the scope of the crime. Serial rapists feed on the terror their actions induce not just in their victims, but in society as a whole. Serial murder and rape are just a smaller scale of terrorism. Gangs are just a smaller scale of terrorist activity.
As for the notion that they were picked up outside the purview of U.S. law and treaties... If you really want to go that route, then we should just release them out of hand, because we never had jurisdiction. At best it could be argued that they should be released to the jurisdiction from whence they came. Personally, I am totally comfortable with the idea that we just try them and let the chips fall as they may, or we decide to call them prisoners of war and figure out what the hell war we are actually holding them for and whether we really have grounds to hold them that way.
Bottom line - living with the rule of law means that we don't get to decide that a crime is so heinous we should ignore the rule of law. And the rule of law is important, so before you throw it under the bus, you need to consider all the implications. The rule of law is what keeps you and me safe from egregious, unfounded prosecution by those who dislike the things we say. The rule of law is what ensures that police and prosecutors can't go off half cocked and simply imprison people they think are guilty based on intuition or because they "look" guilty. And if we have to release people we have strong reason to believe are terrorists because of the bungling of cowboy executives, it will help ensure we don't hire anymore cowboy executives in the future.
Besides, releasing them doesn't mean we can't keep an eye on them. And while smart terrorists are going to treat these released terrorists like poison, maybe there are some really stupid terrorists who won't and we manage to get a line on some of them - works for me. But regardless, we cannot reasonably keep these people indefinitely, once they've been acquitted. All that way brings us is more of the same sorts of abuse of the rule of law.
Posted by: DuWayne | July 11, 2009 11:33 AM
DuWayne - I hadn't read your post here until you directed me to it in the other post.
I agree we need to deal with this issue - not sure why you'd think I believe otherwise. I wouldn't have asked for alternatives to Obama's plan for those we can't disposition elsewhere - which has always been my core argument that has been either continuously avoided by some in the thread with the exception of those that argue for their being let free here in the States as you do in your last post. I find this solution hopelessly naive, and woefully wrong.
Much of what you argue is exactly what I agreed with in my post about how the Saudi's are dealing with the ones we send over there that are either imprisoned or rehabilitated in tightly controlled situations - where the Saudi government is taking responsibility. We have no difference on that issue so I'm not sure why its repeated after that comment was posted. Again, my issue is with known terrorists that can't be dispositioned back to their countries of origin or where they were originally detained in a manner that puts the onus on the receiving country to mitigate their threat to American securit.
Obama's dilemma, and mine, is with detainees that do not fit this paradigm, i.e., ones where their countries of origin, or where they are picked up, will not take them in a manner that is supportive of our national security interests like the Saudis are doing.
As for your support of Abby Normal's serial rapists analogy, I've provided my response already and stand by that position, i.e., "just letting them go" if we can't convict. In fact I reject that notion emphatically.
I ride with you on your high horse when it comes to the prosecution of crimes when using our criminal justice system, including the prosecution of war crimes committed by Bush and Cheney and others. Neither Obama nor I believe its applicable given who and where these detainees were picked up and the context that caused their detention - which is more applicable to war. I do acknowledge, which I believe you and others have avoided, that war is a very different animal with a need for very different tools. Those tools are antiquated given the nature of asymmetrical war which is why I'm uncomfortable with Obama's response in the courts. The laws of war provide Obama with ample powers to keep the afore-mentioned detainees indefinitely as POWs, which I reject for reasons given previously - that would allow indefinite detention which I find reprehensible as well. So I'm looking for a middle ground, where none yet have adequately been given - in my opinion, not even close.
Posted by: Michael Heath | July 11, 2009 1:21 PM
So far you haven't said why we can't send them away nor provided a single example of such a case. Of the two examples you said were problems, one we already did what I've been suggesting and that seems to have been working fine for nearly 5 years. The other I pointed out could be sent to another country without significant risk to our security by extraditing him to face charges in any one of a dozen different countries.
I've offered solutions to every objection you've raised without once ever saying that the detainees should be released into the US. Yet you say that's the only response you've seen. You boohoo my suggestions as naive. But you haven't even hinted at what the problem with them might be. You seem to want some sort of guarantee that no one we're currently holding will ever be a threat to you. So you reject the idea of lawfully trying them because it might lead to them being released. Yet you also don't want them held indefinitely.
As I understand it your concern is, how do we deal with detainees that you somehow know cannot be sent anywhere else for some reason you haven't defined. At this point I'm inclined to say that there is no solution to whatever problem is in your head because that's the only place it exists. How do we deal with those we cannot "disposition elsewhere?" I say there's no such person.
Posted by: Abby Normal | July 11, 2009 4:58 PM
CHANGE WE CAN BELIEVE IN! We Americans are so easily duped by the feigned political battles that make it seem like we have a choice. The same people run this show from behind the curtain no matter who is elected.
Posted by: King of Ireland | July 11, 2009 5:14 PM
Don't use my post as a foil to try and dodge the conversation again Michael, address Abby directly as he has had the most cogent arguments about this with you. That said, I do have to say that you have had a lot of well reasoned and rational arguments in the past and I enjoy reading many of your analyses, but this particular topic appears to have stuck a gear in that think-wagon of yours. You have started falling back on some of the same 'avoidance' tactics you've shown so brightly in other non-rational arguments on this blog.
Posted by: Scott Reese | July 11, 2009 6:26 PM
Abby Normal - I did provide two examples and inferred another example, Hamdi and KSM being the explicit examples. As you noted, Hamdi was dispositioned in a manner we both agree was appropriate given the Saudi's took him into custody. KSM is an example of someone who may very well not be found guilty in a criminal court of law who I strongly believe should not be set free in America if other countries refuse to imprison him. In addition I assumed you read the embedded Ed's post where there are currently 220 Gitmo detainees, some of which fit the profile I characterized that's both consistent with the Obama Administration's argument and is the primary reason this has become an issue.
I think our fundamental difference, if I understand you correctly, is that you believe our criminal court system or agreements/relationships with other countries can be modified to accommodate detainees picked up by U.S. military and intelligence personnel outside our borders. I do not, I believe we need to follow the rules of war, treaties and inter-country conventions that are already established. However, I also believe these military conventions are not adequate in protecting POW rights when it comes to habeus corpus and the length of detention. I see a giant gaping hole.
I think we'd all agree we don't want criminal prosecutors creating indictments unless they're reasonably confident they can get a conviction. As Americans we know our system of justice favors the defendant where we also know that means the guilty frequently go free. I think this forum's readers are comfortable with that principle, as am I. I also think we do have opportunities to send terrorists through our criminal system, Tim McVeigh and the World Trade Center Bombers in the early-90s being examples. Even out-of-country arrests coordinated with our FBI is another excellent example.
However, we also know we have, and will continue to take into possession in the future, known terrorists where we may not be able to obtain confidence we can gain the appropriate conviction and sentence and we also have security interests that make it imperative we do not let these people go scot free. This dilemma has always been true in times of war throughout history. In the past such detainees either represented nation states and were held as POWs or were considered spies and executed. Now we hold detainees where no countries will take them on, we're convinced they pose a security threat, and we don't have confidence we can achieve an indictment and appropriate sentence. Therefore, I think we need some new rules that continue to defend our security interests like we did in the past, but that also better protect the rights of these types of detainees. That's because I'm not comfortable with indefinite detention for detainees where nation states do not claim them who we believe do pose a threat - this is a fairly new phenomena in terms of the volume of it occuring and will continue to experience.
Several people have blamed Bush's mistreatment of some of these people for this situation. While that's true with some of them, not mistreating them does not solve this problem for some of them we're holding now or will take into possession in the future.
Posted by: Michael Heath | July 11, 2009 6:36 PM
Michael Heath -
There are countries who will take them. We have the capability of keeping an eye on them, if we do have to release them. Many of the worse are wanted in other countries, to which we could extradite them.
It is not reasonable to just ignore the rule of law, which you seem bent on doing here. I would much rather see a terrorist go free and sent to one of the nations that has agreed to take them in, than forgo the rule of law out of fear. Again, releasing a few bad guys is the price we pay for hiring a cowboy and will serve to convince us not to hire fucking cowboys in the future.
As for providing a response to Abby's analogy, all you did was say we can't let them go free - you did not explain how we can justify not letting them go free, or how this is any fucking different. The heinousness of the crime doesn't matter, what matters is the rule of law. I for one, am not going to sit here pissing my pants in fear and decide that we can ignore the rule of law, because we have to let a few very bad people go free if we don't. It's not like these assholes are nearly the threat they were before we kidnapped them and tortured them - at least not the actual guilty ones. Their friends would be fucking stupid to have anything to do with them after they leave our custody and if they are, that just gives us an in if we are smart and watch these motherfuckers.
The one's who are really a threat, are the ones who weren't guilty of anything, until we fucking tortured them. I suspect that more than one of those folks are going to be less than inclined to be very nice to the westerners who attacked them.
Your justifications for finding a way to hold these people is no different than the attitudes that led to this bullshit in the first place. The time has come to stop being terrified fucking pansies and step up to support the rule of law. Otherwise these fucking terrorist motherfuckers have fucking won the godamned war and we might as well bend the fuck over and give up the rest.
In all sincere honesty, I would rather lose my life and the lives of family and loved ones, than continue on this path. The rule of law and our freedom, are worth the cost of my life and those I care about.
Posted by: DuWayne | July 11, 2009 7:37 PM
DuWayne stated:
That simply is not true. If it were true, we wouldn't be having this discussion since I'm fine dispositioning them back to their home countries or countries they were picked-up in if we're reasonably assured they'll no longer be a threat. Obama agrees and has acted accrdingly, your argument is therefore not true, at least not yet. We have made progress, for example, the number left has been reduced to 220 out of Gitmo (we shouldn't forget this is not the sum total of detainees we hold), where we might be able to get assurances Yemen will both take their aprox. 100 nationals, and we'll be comfortable they're no longer a threat like previous detainees sent there that broke out of prison. Just like in war, you don't give back POWs if they're put back in action unless a mutually beneficial swap takes place.
DuWayne stated:
That's a ludicrous assertion and is also too narrow of an observation on your part to encompass the reality of the situation I framed and is the issue Obama confronts. The detainees I've specifically discussed have rights under our military laws, treaties, and conventions regarding war, rights I've argued here are not fully protected given their lack of identification to a sovereign nation. My argument is that the laws contain what I previously described as "a giant gaping hole", a hole that inadequately protects the rights of detainees who can be legally held indefinitely under laws with jurisdiction regarding the treatment of POWs and is the very reason I stated my objection to both Ed and the rest of you who disagree with me.
DuWayne stated:
Not true. Again, under current law they can be held indefinitely as POWs. I also made the point repeatedly we can't let those go that our military has detained if we're convinced they remain a national security threat. Military rule of law, treaties, and military conventions in summation provide that power to governments.
DuWayne stated:
Again, not true and in fact so far from reality I'm not even sure you're debating me or the Michael in your head. I've repeatedly called for aggressive prosecution of the Bush Administration in this forum. In this thread I've repeatedly claimed I'm not comfortable holding detainees indefinitely. What I have claimed is how do we disposition these people in a way that protects our national security interests while not violating the rights they deserve given their acts. We can not ignore the jurisdictional challenge and context within which they've been picked up, which is a military one. When it comes to the ones that have been picked up where our criminal laws apply and we have jurisdiction, I've repeatedly claimed I've fine with them being prosecuted through our criminal courts.
DuWayne stated:
I agree. The problem with your argument is that it does not encompass all of the laws that have jurisdiction in this matter. Your implication I do not is also grossly insulting. Fuck you.
DuWayne - I posed a challenge. You clearly did not provide a cogent argument within the framework of that challenge, you instead argued my framework was invalid when it's the very framework Bush and now Obama face, one that future administrations will also face. Instead you've grossly mispresented the actual reality of the challenge and grossly misrepresented my arguments and then rebutted your strawmen. Unless you make an argument that adequately frames Obama's challenges on this matter, I won't be responding to future comments posts from you in this particular thread given it would not be a productive use of my time. I think I was patient to a fault to repeatedly point out the very framework needed to adequately address this issue and therefore judge Obama's argument, which is that this is a military matter where the criminal courts may occasionally, but not always, have jurisdiction and that the military options do not adequately protect the rights of these detainees when the criminal courts are not a viable option.
Posted by: Michael Heath | July 11, 2009 8:31 PM
I'm confused by this. You say there's a hole that needs to be fixed but that we shouldn't modify any law, policies or treaties to accomplish that. How does that work?
Given the war crimes for which he stands accused, I would say a military commission is perfectly appropriate. Any objections to military commissions I might have voiced in previous threads were to their structure as proposed by Bush. As I said earlier in this thread, I'm not against them in principle. So that he likely would be acquitted in criminal court is irrelevant. In the incredibly unlikely event he's acquitted by US military commission and in every other country that wants to put him on trial then why shouldn't he be allowed to return home?
Here I think is the core of our disagreement. I say that if we can't convict them then we must send them home. Yes, that may make us less safe from terrorism than just holding them. But the presumption of innocence makes us less safe from crime, as does the fourth and fifth amendment. So what? We'll never be safe. That's the price of liberty. You can call it naive if you wish. But I'll take naive, principled and free over fearful, unethical, and oppressed any day of the week.
With regard to the Yemeni detainees, the Newsweek article you linked to says that Yemen is willing, even eager to take them back. So if we can't convict them, send them home. We can't bully the government of Yemen into incarcerating them for us. That's no more just than holding them ourselves. If we can't prove they've done something wrong we have no right to treat them as if they have.
Posted by: Abby Normal | July 11, 2009 10:51 PM
No Michael, fuck you. You have yet to show any reason why we should hold these people indefinitely, except that you're fucking scared of what they will do if we let them go. So the fuck what?
The fact that you may want to prosecute bush, doesn't detract from the simple fact that you are making argument based in the same fucking bullshit that led to the actions you want to see bush prosecuted for.
Our motherfucking security should not - CANNOT trump the rule of law. We are not supposed to be a nation that kidnaps and tortures people - even very bad people. If the fact that our having done so means we might have to let some of them go free because we can't convict them in civilian or military court, then that is what it fucking means. I am not going to sit here and piss my pants in fear at the notion and advocate anything less than either convicting these motherfuckers, or letting them go. And whether it is to Saudi, Venezuela or their own home country, where they won't be prosecuted, then that is what it fucking means.
Fuck our goddamned security you fucking pussy!!! We fucked up and we have to live with the fucking consequences. Twisting the law to make the torture go away is not a fucking option. All that does is prove to the world and worse, to US, that we're nothing but a rogue nation without a conscience. That the rules don't apply to us unless we say they do. That torture is wrong, unless we absolutely have to, in which case we will bury it and the motherfuckers we tortured - rather than admit we fucked up and make it right - even if making it right will hurt.
Fuck you you fucking pansy. You dare to claim that you respect the rule of law, when you are pissing your fucking pants at the idea that we might have to sacrifice security to make this right.
You respect nothing.
Posted by: DuWayne | July 12, 2009 12:24 AM
Actually, they should probably have been repatriated after the Taliban government fell and a new one was put in place (at least the ones that weren't captured later)
Posted by: windy | July 12, 2009 5:18 AM
It appears from this perspective that this is a strawman. You are not addressing Abby Normal's point that he could be handed over to another country for trial. In the unlikely event that it fails, you could hand him over to his country of birth or residence.
Great - are they in detention too? If not, then it seems that war criminals walking on U.S. streets is not the end of the world. (and please don't say that it's different because Bush, Cheney and the like wouldn't harm the US)
And time and again your military has been absolutely convinced that someone is a terrorist mastermind, and shown to be full of it. But I'm sure this time it's totally different, and this new preventive detention scheme would never be used against someone like Mohamed or Boumediene or this guy. Look, over there, it's KSM! Boo! Scary!
Posted by: windy | July 12, 2009 5:46 AM
Abby Normal stated:
Abby Normal - I now completely understand your argument but must again repeat we are holding detainees whose countries refuse to take them back where we've also determined these set of detainees pose a security threat. As best as I can tell, you continue to provide no remedy for these people unless it was in a previous post and I forgot about it.
I do respect the points you did make and believe your argument has merit given your agreement that military commissions are appropriate in what appears to be the framework I provided where they are applicable, such as KSM. My not finding a solution in your argument to the issue of our having detainees we believe are a national security threat where we have no place to send them except setting them free has me far more empathetic to Obama's dilemma than originally. The Uighers (sp?) are a good example of Obama's policy being superior to Bush's given they were not a threat and we worked for their freedom; but that is not the full set of detainees whose countries won't take them back and/or where some are considered a threat.
I still disagree with you on those whose countries who will take them back but won't provide security measures when we determine they are a threat. I can't imagine being a President who sends back known terrorists or enemy combatants picked up in a war zone back to a country confident that at least some of them will immediately return to the field of battle. I find no constitutional limit on a President's power to concede their release given the conventions of war allow me to hold them indefinitely nor could I look into the eye of a parent who lost child to such a player. I disagree with this lack of limitation however, which is why I think some limitations should be opposed in the laws and convention of war. So while I respect your argument, I have actually come to be even more empathetic to Obama's dilemma in terms of threats we hold that we can't indict and whose countries will not take them back and mitigate their threat.
I agree with Bush/Obama's policy when it comes to sending the Yemenis back to Yemen, which is a slight departure from your point. It appears we are in agreement our government should send un-indicted detainees back to their countries of origin if at all possible, where I depart from you is I want some assurances their threat has been mitigated, a la' Saudi Arabia. Yemen appears to be heading in that direction.
This still leaves hundreds in a lurch however given they're outside criminal jurisdiction, are considered threats, whose countries of origin will not take them back or refuse to mitigate this threat. So I'm sure we'll be hearing more about this.
Posted by: Michael Heath | July 12, 2009 10:55 AM
DuWayne - your arguments continue to be with the Michael in your head, they in no way represent my arguments. Good day.
Posted by: Michael Heath | July 12, 2009 11:02 AM
Not in the least. You are trying to find ways for us to hold onto detainees who were tortured - regardless of the findings of civilian courts or military tribunals. You want to claim that treaties we've signed regarding pow's should apply, but unfortunately when we tortured them, we threw those treaties out the window. We based their detention on the notion that those rules simply don't apply to suspected terrorists.
The tricky part is, we can't legally or at the least ethically base our determination of whether they are actually terrorists or not, on information obtained through torture. So without reasonable proof procured by other means, that these prisoners are actually terrorists we don't have reasonable grounds to hold them. This inevitably means that we have to release some of them. A lot of the very bad people we are holding are wanted in other countries. Others are welcome either in their country of origin or will be taken in by other nations. The fact that some of them may well end up back in the fight against us, is something we have to accept. Anything less than that, proves we are a rogue nation - a nation without a conscience, who believe the rules only apply to us when we want them to.
Your only justification for finding ways to hold them seems to be security. If you have some other argument, then please explain. You complain that I say the framework you are talking about is flawed, that it's the only one we have. Bullshit. The framework became fatally flawed when bush threw out the conventions of war and all other legal precedent. We need to throw that illegal and unethical framework into the shit can and deal with the consequences
And the other end of the problem is, even if it's decided that we should hold some of these folks, whether they are proven to be terrorists or not by tribunal or civilian courts, we will inevitably fuck up and hold people who are guilty of nothing. That alone is enough to make it absolutely wrong to play this game your way.
And finally, for the record, I have a lot of friends and family members who are overseas fighting this war. People I love who are right now, in harms way. I am not terribly keen about putting them at further risk because we had to let bad people go, who will go back to the fight. But that is what simply must happen, if we are going to get back on track.
Posted by: DuWayne | July 12, 2009 1:59 PM
They aren’t known terrorists until they’re tried. Until then they’re just suspected terrorists.
Lets differentiate between terrorists, who target civilians, and combatants, whose targets are military. A combatant should be given POW status and we should hold them until the fighting is over. The 1977 additions to the Geneva Conventions, which deal with irregular fighters like the Taliban or Iraqi insurgents, were written specifically for that purpose. I agree with you that they should not be allowed to return to the battlefield and have said so. Terrorists, on the other hand, are not battlefield fighters. They are criminals and should be tried. But like all accused criminals, if they’re acquitted they should be released. (Or extradited if another nation also has claim.) Conflating the two types of prisoners gains us nothing.
I’m sure no more that I could look in the eye of a parent whose child is being held and tell them that, no we won’t be trying them or even presenting any evidence against them. Our leaders say they’re bad, so you’ll never see them again. So sorry.
That, too me, is why we must try them. You keep saying we can’t let dangerous people go. But how do you know they’re dangerous if they’re never charged and tried? And of what use is a trial if acquittal does not lead to release? You seem willing to accept that our government just knows who’s been naughty and who’s been nice. But their track record shows that they monumentally bad at making that determination. And history shows us time and again that a government with such oppressive power is far too dangerous to be allowed.
Posted by: Abby Normal | July 12, 2009 10:57 PM
This man has been determined to be a threat by the Pentagon. Should he be put back in detention, in your opinion?
Posted by: windy | July 13, 2009 12:37 AM