Preventative Detention

Kevin Drum takes – as always – a moderate, pragmatic view.  I happen to disagree with him, unsurprisingly:

I appreciate the outrage, but this is a genuinely knotty problem.  It was knotty under Bush and it remains knotty under Obama.  For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding.

At the same time, they aren’t American citizens.  They were captured on a foreign battlefield, not U.S. soil.  They are, essentially if not legally, prisoners of war in a war with no end.  So what do we do?

There is no president of the United States who has ever lived who would release such people.  There’s no president who would survive doing so even if he did.  It’s an impossible situation.

For me, forgoing acting on the principle of the matter is a hard thing to do.  Drum points out the obvious, rational reason:  Following the rule of law in this case is political suicide, since it would likely entail letting people go.  Obama certainly understands this.

Therefore, if he actually dislikes detaining people outside of the law, what he needs to do is making it politically palatable follow the rule of law.  I think he gets this, as suggested by his comment yesterday that he’s in this for the long term.  This is the charitable read on his actions – and it’s not necessarily one I agree with.  However, I think I understand the reasoning.

Personally, I’m on Greenwald’s page:

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.

What do you all think?

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2 Comments on “Preventative Detention”

  1. Russ Says:

    So what happens if they pick one method, expecting conviction, but they don’t get it? Can they get a do-over in the tribunals next? It is probably a no win situation unless the “war” ends. Previously, most POW’s were released when the aggression ended. I am not seeing much changing with the new proposals given yesterday. The pre-conviction prior to conviction to ensure a conviction sounds very wrong.

  2. Dennis Says:

    Russ – and this is why a lot of us flaming lefties are pretty upset about this, no matter who is Prez. It’s pretty shady business.


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