Editore"s Note
Tilting at Windmills

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May 22, 2009
By: Hilzoy

Just Shoot Me Now

I liked most of Obama's speech. If it weren't for that one little bit about preventive detention, I'd be as happy as a clam. But there it was:

"But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

Let's start with the good part. If we have to have preventive detention, it ought to be subject to the kind of oversight Obama is talking about. There should be rules. There should be checks and balances. I like that part.

But that's like saying: if we have to have censorship or prohibitions on particular religions, they ought to be subject to judicial oversight. Yay for judicial oversight. Hurrah for explicit legal frameworks. Whoopee. That said:

Preventive detention????????

No. Wrong answer.

If we don't have enough evidence to charge someone with a crime, we don't have enough evidence to hold them. Period.

The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don't have enough evidence, that's a problem, but it's also a problem with detaining them in the first place.

What puzzles me even more is this, from a New York Times story about this:

"The two participants (...) said Mr. Obama told them he was thinking about "the long game" -- how to establish a legal system that would endure for future presidents."

The long game? If we have a need for preventive detention, which I do not accept, it's a short-term need produced by Messrs. Bush and Cheney. The long game is the preservation of our republic. It is not a game that we can win by forfeiting our freedom.

People seem to be operating under the assumption that there is something we can do that will bring us perfect safety. There is no such thing. We can try our best, and do all the things the previous administration failed to do -- secure Russian loose nukes, harden our critical infrastructure, not invade irrelevant countries, etc. -- but we will never be completely safe. Not even if we give up the freedom that is our most precious inheritance as Americans.

Freedom is not always easy, and it is not always safe. Neither is doing the right thing. Nonetheless, we ought to be willing to try. I wish I saw the slightest reason to believe that we are.

Hilzoy 3:02 AM Permalink | Trackbacks | Comments (81)

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Comments

That passage also pulled at me. The illusion of perfect safety drives us toward tyranny. In a free society, any citizen should be willing to face death rather than to see liberty denied. For us, that risk is embodied in the chances taken so that we can preserve the rule of law. Not to toot my own horn too much but I was worrying about this a long time ago.

There's no doubt things would have been worse with the other guys in charge but this passage was quite disturbing. Look how far we have fallen!

Posted by: Bernard HP Gilroy on May 22, 2009 at 3:22 AM | PERMALINK

We have laws in place. They were just broken. I think Obama is in denial. I realize he is frustrated about what he can/can't do based on Republican ability to shut the government down.

Blech.

Posted by: Pinko Punko on May 22, 2009 at 3:36 AM | PERMALINK

Denial? This is embracing.

That Obama is worried about our safety rings about as true as the idea that the Cheney saw 9/11 as something other than an opportunity. If they give a shit about the electorate, it is like the feeding of a horse.

Posted by: quagmiremonkey on May 22, 2009 at 3:54 AM | PERMALINK

Well, what would you do if a convict who's done his time announces that the minute he walks through the prison gate he'll go after the guy who ratted on him and then kill him? I'm not sure about the legal background for this, but you can't possibly think that a guy like that should be allowed to walk the streets as a free man?!

Posted by: Michael on May 22, 2009 at 4:18 AM | PERMALINK

How can you be a "convict" if you haven't been convicted of a crime? And what is preventing anyone from being convicted of crimes such as death threats? Unless it was the complication of preventing powerful men from being convicted of the crime of torture?

Posted by: quagmiremonkey on May 22, 2009 at 5:01 AM | PERMALINK

Here's a clip from today's Rachel Maddow show.

She's interviewing Vincent Warren, head of the Center for Constitutional Rights, who met with Obama at the White House yesterday with other human rights activists and civil libertarians about their concerns with Obama's embrace of Bush and Cheney policies.

http://www.youtube.com/watch?v=vbslm1h8xjI


"There is now no difference between Obama's policy with regard to indefinite detention and the policy of PW Botha in South Africa."

Posted by: Marc Spinoza on May 22, 2009 at 5:03 AM | PERMALINK

What do you call it when they lock someone up because they're insane? I think that may be one result of torture. And I don't buy Cheney's argument that we only used EIT on a few people. In fact, I suspect thousands of recently unreleased photos agree with me on that. The test will be how many of these people there are and how or where they are detained.

Hilzoy, I would be curious to know where you would release someone who merely got recruited into Bin Laden's Moonie-like jihad camps (like John Walker Lindh), then got sent to Gitmo, where are now both suicidal and "religious". Do you think their home countries want them, or will give them the freedom they deserve?

Posted by: Danp on May 22, 2009 at 5:11 AM | PERMALINK

Constitutional law professor? Does not compute.

Posted by: candideinnc on May 22, 2009 at 5:42 AM | PERMALINK

I think you're missing a point. The problem is that we can't return these people to the place we got them from in the first place. If we could do that, there wouldn't be any need for indefinite detainment by us. But from what I understand, under international law, and according to the government's of the countries from which they came, that's not an option. There is no good answer here, but at least Obama's trying to make sure that we never get in this situation again.

Posted by: Mel on May 22, 2009 at 5:42 AM | PERMALINK

from Obama's speech:

That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards....

That sounds suspiciously like the excuses the GWB admin gave for crafting the torture memos.


from Vincent Warren, as quoted by Marc Spinoza above:

"There is now no difference between Obama's policy with regard to indefinite detention and the policy of PW Botha in South Africa."

Or the policy of the Zionists, which is the more apropos comparison given a) who Obama's top advisers are, b) who the US relied upon to advise us in "enhanced interrogation" after 9/11, c) and who the targets of all these racist policies are.

Damnit if Obama isn't going the exact precise route I feared he would.

Posted by: Disputo on May 22, 2009 at 5:49 AM | PERMALINK

These Taliban and al Qaeda thugs are like mafia foot soldiers. I'm not a lawyer but it seems we always find a way to prosecute the mafia -- taxes, conspiracy, racketeering, etc. Follow the money -- who's wiring them money? I'm guessing drugs are involved at some level.

al Qaeda is also like the KKK -- a hate group. They hate Americans, they hate Jews. If they are caught domestically engaging in activity in preparation for a hate crime, is that grounds for incarceration?

If we captured them on the battlefield in the act of attacking Americans then aren't they prisoners of war? If al Qaeda's leaders say the war against America is permanent and ongoing, what bearing does that have on POW status?

But you're right, Hilzoy, thinking about a crime isn't grounds for incarceration. That gets to be like that 2002 Tom Cruise movie Minority Report, where the police pre-crime unit swoops in and performs preventive arrests based on visionary foreknowledge provided by psychics. If Dick Cheney is your visionary psychic you're in big trouble.

Posted by: pj in jesusland on May 22, 2009 at 6:02 AM | PERMALINK

>How can you be a "convict" if you haven't been convicted of a crime?

I was using a different situation as a counterexample, is that so hard to grasp?


>And what is preventing anyone from being convicted of crimes such as death threats?

Well, that's what might happen in the end. I'm sure it's one of the options when it comes to dealing with Guantanamo inmates that are considered dangerous.

Posted by: Michael on May 22, 2009 at 6:46 AM | PERMALINK

Ok, I'll play Devil's advocate on this one. It's easy for Rachel Maddow to furrow her brow and tsk, tsk with withering disappointment when there's no weight of responsibility hanging over her head. There ARE dangerous people out there determined to cause grievous harm to this country and our people. If something horrible ever happened in this country, again, at the hands of people who were know to have serious harmfull intent, the likes of Rachel Maddow would have the luxury of again furrowing her brow and wondering for her audience "how was this allowed to happen?"

One of the most dangerous legacies of the Bush adminstration was their complete ownership of the War on Terror™ and everything that went with it. Their abuses of extrodinary circumstances were sweeping. Clearly President Obama is trying to reign in those abuses while formulating a policy that addresses the threats we face. From what I understand he's putting in checks and balances by bringing in congress, the judicery and instituting reviews. That's a far cry from what the bush adminstration had done.

Posted by: Saint Zak on May 22, 2009 at 6:55 AM | PERMALINK

If we take this step today; this, as the President refers to, enabling of "preventive detention", then what might the next logical steps be?

Am I to "guarantee" the freedom of my children to be well-fed by applying "preventive starvation" to my neighbor's children?

Should I adopt a stance of my right to live by simultaneously applying a doctrine of "preventive death" upon another?

Once the madness begins; once the Pandora's Box of Pandora's boxes has its lid torn asunder, there is no going back. We will never---NEVER, I SAY---be able to point out the illegitimacy of Iran detaining a journalist, or China using tanks in putting down the next Tienanmen, or Moscow invading the next Georgia---because when we point the finger of blame at them, we'll have discovered that the other fingers of that self-righteously-clenched fist are pointing right back at us....

Posted by: S. Waybright on May 22, 2009 at 7:09 AM | PERMALINK

But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred.

Construct a legitimate legal framework? As opposed to acknowledging the one we have?

If I had read this out of context, I'd have thought it came from the Bush administration.

Like a nightmare America can't wake up from. There's a "long game" here, Mr. President. It's just not the one you think it is.

Posted by: shortstop on May 22, 2009 at 7:26 AM | PERMALINK

I'll agree with Hilzoy on preventative detention as a criminal concept. It's awful, even with due process.

But the laws of war do apply. As far as I understand them, you can hold a POW until the war is over. To the extent that these guys are POWs (IIAL, but I don't know much about this law), there is a basis for holding them without much evidence of anything but Al Qaeda affiliation.

Posted by: Joe S. on May 22, 2009 at 7:29 AM | PERMALINK

We know so little about who these detainees are and how/why they got there. Apparently bounties were paid, with the result that old grudges were settled, with scant regard to the "facts".

"Swept up on the battlefield" means little, after the sorting out begins. We could say the same thing about anyone caught outdoors during the Watts riots. Or protesters in New York during the Republican convention. I seem to recall Innocent Bystanders being clubbed, maced, and arrested. Thankfully most got an "Oops, sorry."

And then there are the detainees that were released, with a Bush/Cheyney version of "Oops, sorry." It is hardly surprising that, after years of the Gitmo Experience, they "returned to the battlefield."

I, for one, would head for the nearest recruiting station after receiving that kind of treatment.

We lock up the criminally insane, and we lock up people convicted of PLANNING an illegal event, be it bank robbery or terrorist plot.

But: locking them away without any sort of due process- sorry, but this is the United States of America. . .

Posted by: DAY on May 22, 2009 at 7:38 AM | PERMALINK

This is really a tragic choice, if you cannot convict someone, but you have held them for 7 years without trial, you probably have created the conditions that they hate you and are willing to take retaliation, particularly if they have been tortured.

Posted by: JS on May 22, 2009 at 7:44 AM | PERMALINK

President Obama emphasized that any system of indefinite preventive detention must be subject to the rule of law. The problem -- as has been noted by others -- is that any such program would be inherently inconsistent with the Constitution and the American system of law. Obama is smart enough to realize this. It sounds as though he's trying to pass the buck to the federal courts.

Posted by: Kuyper on May 22, 2009 at 8:00 AM | PERMALINK

I absolutely agree that Americans' push for a risk-free society is disheartening and even dangerous. I'm currently researching a paper on whitewater kayaking and extreme sports in general, and was fascinated to learn about Gerald S. J. Wilde's theory of "Risk Homeostasis." Basically, it posits that both individuals and larger human systems (e.g., citizens of a particular country such as the United States) are equipped with a fixed level of risk tolerance.

Although I am playing a slight variation on Wilde's theme, it works like this: The amount of risk that I will accept is fixed, but variable. My risk tolerance will rise and fall in inverse proportion to the perceived riskiness of my situation. For example, as a novice whitewater paddler, my lack of competence will make me perceive paddling as very risky, and I will be unwilling to run a big river. As my competence grows, kayaking will seem less risky, and I will be willing to paddle more difficult rapids. But my innate level of risk tolerance will not have changed.

It's pretty easy to how risk homeostasis can by exploited by politicians (cough*Republicans*cough). If they can convince us that our environment is full of immediate and acute danger, our risk tolerance will plummet proportionately, making us willing to go to extremes in order to maintain homeostasis.

Of course, Wilde simply articulated and named a phenomenon that is fairly intuitive, but still, I found his theory compelling.

Posted by: AuntieSlats on May 22, 2009 at 8:00 AM | PERMALINK

Saint Zak, liked your useage of "reign in those abuses" - That is the problem - The use of "reign". It harkens back to the days of Royalty imposing their personal will upon others. These are not the times of Henry VIII and the Star Chamber, with dungeons and the chopping block. We are a nation, a Republic, founded under our Constitution, ergo a nation of laws. Even though George and Dick tried their best to create a monarchy and dissolve our Constitution, their practices must be reined in with no reign ever imposed upon this nation. Mandates do not place a crown upon anyone's head. November fifth last was an election, not a coronation. President Obama, discard the ways of King George and his Consort.

Posted by: berttheclock on May 22, 2009 at 8:02 AM | PERMALINK

It's pretty easy to how risk homeostasis can by exploited by politicians (cough*Republicans*cough).

I would argue that it is pretty sad how ideologues in general are able to convince people that there is either zero or a hundred percent risk.

Posted by: Danp on May 22, 2009 at 8:05 AM | PERMALINK

We keep dancing around the POW issue. If the so-called detainees are "effectively at war with the USA" then they need to be treated as POWS. The laws, customs and treaties relating to the treatment of POWs are well defined, in particuler no trials of POWS are permitted for the wartime acts.

Posted by: rfb99 on May 22, 2009 at 8:07 AM | PERMALINK

Great idea on trying to stop the flow of information on how to blow stuff up, but that cat is already out of the bag.

The problem is bound to be extra legal. What is the difference between a rogue group going to a failed state an launching missiles at the US or training "human missiles" to sneak into the US to blow stuff up? The rogue groups are in the failed states because there is no local rule of law to stop them. If missiles were coming at us from another country, we would probably declare war and bomb them. That is hardly as nice as detention or a legal system.

Does the US legal jurisdiction extend into failed states? Where is the distinction between terrorists and "freedom fighters in a civil war"? This is a huge legal headache. Probably it would be best to set up international courts to deal with terrorists. There needs to be a mechanism to stop these groups. Any other ideas?

The US has huge responsibility for the mess as one of the largest arms suppliers in the world. We have also "trained" groups in the use of these tactics (Thank you Ronald Reagan) for use against the FSU and now we have blowback.

Posted by: bakho on May 22, 2009 at 8:10 AM | PERMALINK
But that's like saying: if we have to have censorship or prohibitions on particular religions, they ought to be subject to judicial oversight.

We do have censorship subject to judicial oversight. My grandfather's mail was censored during WWII. We do have prohibitions on particular religious ceremonies (maybe not religions) subject to judicial oversight. The Rastafarian find this out on a regular basis.

What Obama is proposing isn't as horrible as you describe it. If the gov't can prove to some independent body that prisoner X received bomb making training from Al Qeada then that is proof that the prisoner is at war with the US. Prisoners of War don't get trials with all the rights afforded to US citizens.

The problem with my thinking, however, is that once someone is declared a prisoner of war he has certain rights that we currently aren't providing for. The fact that Obama doesn't seem willing to grant these rights to these prisoners leads me to believe there are many problems with this that I am not aware of.

Anywho, I am just going to accept the hypocrite label and say, as long as Obama fixes this going forward then I will support what he is doing with these prisoners. We don't have the luxury of black or white thinking anymore.

Posted by: Blue Neponset on May 22, 2009 at 8:18 AM | PERMALINK

Rachel has "the luxury" NOW of asking the questions...that's what she does...and were this a "perfect" example of freedom and democracy there would be an actual DEBATE...not the manufactured "DUELING SPEECHES" promoted by our infantile MSM to increase their ratings and grab guys away from the other outlets...As one who prides myself on trying to listen, think, and decide I see how easy it is to be swayed by too much media hype and the spinning and manipulating of words to create either fear or doubt or both. For now I'm choosing to continue to follow the process necessary for becoming informed and decisive and will give the President the benefit of the doubt while watching and listening to HIS WORDS/ACTIONS...forget letting the headlines and "BREAKING NEWS" scrolls provide your information. Or isn't that loss of curiosity, investigation and exploration more what we need to FEAR than any terrorist????

Posted by: Dancer on May 22, 2009 at 8:22 AM | PERMALINK

Great post. But will Hilzoy's post compensate for the endless Obama apologists (Steve Benen) who constantly (go ahead and count them) post republican bashing posts, completely ignoring the simple fact that the Democrats control both houses of Congress and the White House.

Obama's speech was the speech of a tyrant -- someone who wants to cloak oppression in the flag of the Constitution.

I believed sincerely that Bush needed to be impeached. I believe today that Cheney needs to be charged with war crimes.

But if Obama truly believes in preventive detention, then America has no choice but to replace him with Biden, as soon as possible.

Preventive detention is wrong, it is criminal, and it is not Constitutional. Anyone advocating it should be removed from office. Period.

Posted by: Joesbrain on May 22, 2009 at 8:34 AM | PERMALINK

"Rachel has "the luxury" NOW of asking the questions...that's what she does"

From a set agenda just like the right leaning shows...albeit less shrill. I agree with her a whole lot more than the others, but I'm no fan of cable news shows because they're one-note preaching to the choir as far as I'm concerned. These people keep their audience (and earn their paycheck) by maintaining a strict line of opinion. It all comes down to Limbaugh's tag line: "You don't have to think. I'll think for you." 10, 9, 8...you know exactly what any of those hosts are going to say. That's the end of my bitch about cable news shows.

Posted by: Saint Zak on May 22, 2009 at 8:40 AM | PERMALINK

sorry hilzoy, you're wrong. you're mixing apples and oranges. you can have overwhelming evidence that someone is an enemy combatant and not be able to convict them of a crime in a court of law. there are all sorts of due process problems on a battlefield (one suspects that few if any prisoners picked up after a fire fight are mirandized). and i don't know that taking up arms against our forces is a criminal offense in and of itself. that doesn't mean they are not dangerous, nor does it mean we don't have the right to hold them. they are enemy combatants, just like thousands of german citizens we held indefinitely and without benefit of trial during world war ii and thousands of americans during our own civil war. yes, these people should be afforded some sort of due process. to hold innocent men and women who, as one poster put it, got swept up in the battlefield or are victims of a vendetta is inhumane, immoral and counterproductive. they should be given the opportunity to challenge what evidence there might be against them. we should have been doing so from the very beginning. we should have done so before shipping them off to guantanamo. but to say that criminal legal standards should be used in all cases is simply absurd because criminal laws don't necessarily apply.

Posted by: mudwall jackson on May 22, 2009 at 8:47 AM | PERMALINK

We don't have the luxury of black or white thinking anymore.

What crap. This statement and its many iterations drive me insane. This is directly translatable as, "The Consitution, the rule of law and international treaties are only for the easy times," and it's the kind of thinking that made possible every historical atrocity and grave injustice committed in the name of someone's national/cultural/tribal security.

Posted by: shortstop on May 22, 2009 at 8:48 AM | PERMALINK
This is directly translatable as, "The Consitution, the rule of law and international treaties are only for the easy times," and it's the kind of thinking that made possible every historical atrocity and grave injustice committed in the name of someone's national/cultural/tribal security.

I just don't believe in absolutism. The Constitution, the rule of law and international treaties are not infallible. None of them offer a good solution for stateless belligerents. If Bush & Co. had made a good faith effort, from the beginning, then we could have solved this problems relatively easily. That didn't happen. Now Obama has to chose between releasing terrorists or being loose with the law. I don't like it but that is the choice we are facing. If you have a solution that doesn't involve letting these prisoners go, I would be eager to hear it.

Posted by: Blue Neponset on May 22, 2009 at 9:03 AM | PERMALINK

You know, Blue Neponset, your comments remind me of something a Republican neighbor said to me about three years ago when we were having a heated discussion about Bush. He said "Democrats are just as likely to suspend civil liberties as Republicans, the only question is who is in the White House at the time" -- in other words, your tyrant is my leader, your leader is my tyrant.

My answer could have been, and almost was, "Democrats are different" -- but it wasn't. I said "in the end, the issue is 'are we upholding the Constitution and our civil liberties?'".

The comments above only reinforce my belief that Democrats are just as likely as Republicans to be willing to suspend civil liberties at the drop of a hat.

You say Now Obama has to chose between releasing terrorists or being loose with the law. I don't like it but that is the choice we are facing. If you have a solution that doesn't involve letting these prisoners go, I would be eager to hear it..

You're not going to like my own answer, but here it is.

If the government can not bring a case against a defendant, no matter whether that defendant is a common criminal, a murderer or a terrorist, the only choice is to let the defendant go. There is no other choice.

To do otherwise is to destroy the rule of law. Believing that the President knows more than anyone else, but just isn't willing to tell the rest of us, is not a serious position. Even the president has to present his case before the bar of justice. If the president is above the law, as you seem to be advocating, then how will you feel if Cheney were to become president?

The law (and the Constitution) applies to everyone, or it applies to no one.

Posted by: Joesbrain on May 22, 2009 at 9:15 AM | PERMALINK

Mudwall, when did being "an enemy combatant" become a crime? An enemy combatant, if captured, becomes a POW, subject to the protections of the relevent Geneva Conventions. There's nothing to prosecute, and they are to be released on cessation of hostilities.

If there is overwhelming evidence that an enemy combatant committed a CRIME - they can be tried. And if there is overwhelming evidence of criminal behavior (killing prisoners, mistreatment of prisoners, killing civilians not under arms, etc.) you will be able to convict and punish and as long as due process was followed very few people will criticize.

Posted by: Butch on May 22, 2009 at 9:22 AM | PERMALINK

I 2nd Joesbrain at 9:15AM

Also - "None of them offer a good solution for stateless belligerents."

WTF?? Like this is the first time in the history of the United States that we've EVER had to apply our existing legal and law enforcement structures to "stateless" belligerents?? Not sure why a stateless belligerent is somehow more terrifying than a belligerent that still owes some (nominal) allegiance to a state, BTW.

Mafia, international smuggling rings, pirates, terrorists (both AQ and other) have all been dealt with within the existing system. It does require more thought and hard work - and there's room in there for insertion of precisely applied military force. But it can all be handled under our existing systems.

Someone once said "the Constitution isn't a suicide pact". And I agree. It is a document that requires people to be tough, smart, and willing to accept the risks that go with playing by the rules. We have plenty of tools for keeping ourselves reasonably safe without playing loose with the Constitution and our legal framework. And reasonably safe is fine with me.

Posted by: Butch on May 22, 2009 at 9:39 AM | PERMALINK

If you have a solution that doesn't involve letting these prisoners go, I would be eager to hear it.

You're just not getting it. The solution and "not letting [some of] these prisoners go" are fundamentally incompatible. It's really simple, Blue; prisoners against whom we cannot bring charges or make a case, even if we think that prisoner means to do us harm, have to be released. This is how our laws work. This is how our constitution works. This is how we do it. And yes, the equal application of justice has to be absolute. When it isn't, we're well down the road to self-justifying virtually any behavior by calling it necessary for security. No nation, culture, religion or tribe has ever reached the point of committing human atrocities without first accepting your line of thinking.

You're willing to take the much larger, incredibly far-reaching risk of abrogating our system of justice because you personally can't face a certain amount of risk that comes with refusing to abandon our core principles. But that really is your problem. The problem is not with our constitution or the rule of law.

Posted by: shortstop on May 22, 2009 at 9:41 AM | PERMALINK

We don't have the luxury of black or white thinking anymore.
Posted by: Blue Neponset on May 22, 2009 at 8:18 AM | PERMALINK

Since when? Since the War of 1812, when British forces on American soil occupying the nation's capitol actually set fire to public buildings and burned down the White House?

Or the civil war, when over forty thousand Americans died at Gettysburg and Sherman set fire to Atlanta?

Oh -- you mean since 9/11, when a couple of guys with box cutters fooled people into planes into thinking they were hijackers and then crashed the planes into buildings.

There is nothing "new" here that deprives us of the "luxury" of the rule of law. There is, however, an age-old hysteria and and inclination to mob-thinking that comes from moral cowardice and a lack of historical perspective.

And what shortstop said, much more eloquently than I.

Posted by: trex on May 22, 2009 at 10:11 AM | PERMALINK

Aw, making the Top Ten plays of the day - From deep into the outfield grass, a strike is thrown to first nailing the runner. Our Intrepid Infielder has done it, once again.

Posted by: berttheclock on May 22, 2009 at 10:12 AM | PERMALINK

Or the civil war, when over forty thousand Americans died at Gettysburg and Sherman set fire to Atlanta?

Right! And there was no indefinite detention during the Civil War!

Oh, wait....

http://www.censusdiggins.com/civil_war_prisons.html

Posted by: Jeff S. on May 22, 2009 at 10:20 AM | PERMALINK

Regardless of the Constitution, there's no legal reasoning that you could use that wouldn't immediately apply to known gang members, organized crime members, etc. Just identify them as a member of a violent criminal organization and lock them up for the rest of their lives, so they don't kill anybody else.

But of course a federal judge just ruled that Obama could keep these people locked up indefinitely on account of their POW status. That's a lot different than "preventive detention."

Posted by: Halfdan on May 22, 2009 at 10:27 AM | PERMALINK

Right! And there was no indefinite detention during the Civil War!

There was. And it's pretty much universally agreed that the suspension of habeas during the CW and Reconstruction was a serious error of judgment, a very bad mistake on Lincoln's and Grant's parts. I hope you're not arguing that it wasn't?

Look, we all know the U.S. has dropped this ball before. But cooler heads have prevailed in the end. Obama is, to our enormous dismay, not proving to be a cooler head on this issue as we'd hoped he'd be.

Or, perhaps more accurately, we know his is a cool and rational head and that he's intimately acquainted with the constitution -- and so his willingness to betray something so fundamental to our national integrity is even more of a disappointment.

Posted by: shortstop on May 22, 2009 at 10:35 AM | PERMALINK

Obama: "And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

Hilzoy: If we don't have enough evidence to charge someone with a crime, we don't have enough evidence to hold them. Period.

Whenever a president utters the word "regime" you know there's going to be a problem. "Regime" is a proxy word useful for distracting from and suppressing actual moral concerns.

We're not causing the deaths hundreds of thousands of people in Iraq, we're enacting "regime change." We're not weaving a parallel justice system out of whole cloth for political reasons because the average American suburbanite is terrified of Arab or Muslim criminals, we're developing a legal "regime" to oversee their rights and care.

The theory of mission creep dictates that once such an alternate "justice" system is created, it will begin to be used against Americans for any variety of unjustifiable reasons. Terrorism laws have been used to charge overwrought mothers and kissing couples on airplanes with crimes and the Patriot Act has been used to net such deadly terrorists as angry teenagers in class rooms and marijuana smugglers.

Could this lovely new justice system for terrorists be where such dangerous individuals one day end up?

Right! And there was no indefinite detention during the Civil War!

Funny you should mention that. A group of Civil War Historians actually filed a brief on behalf of Al-Marri [warning: pdf] and argued very strongly that the government did not have the authority to hold him indefinitely based on the principles of the Milligan decision in 1866, which held that:

legal residents of this country who planned terrorist activity could not be denied a jury trial in civilian courts so long as those courts were open.

We also put Japanese, Germans, and Italians into internment camps during WWII. How'd that work out for us?

We are not "at war" with terrorists. People commit acts of terrorism in countries around the world for all sorts of political and ideological reasons and will continue to do so until the end of time. The criminal justice system and maximum penalties for those acts are sufficient to deal with them.

Posted by: trex on May 22, 2009 at 11:00 AM | PERMALINK
There is nothing "new" here that deprives us of the "luxury" of the rule of law. There is, however, an age-old hysteria and and inclination to mob-thinking that comes from moral cowardice and a lack of historical perspective.

We have a cat and mouse problem here. Our enemies will benefit if we have to treat our prisoners as P.O.W.'s or US Citizens. The right thing to do (seven years ago) would have been to create some type of legal or judicial oversight to determine the fate of these prisoners. That didn't happen. Instead these people were tortured. Because they were tortured any evidence of their guilt is not inadmissible.

Being the victim of torture isn't the same thing as being innocent. These people are still a danger to us. We can't turn them over to another country and we won't let them free in our country. If we can't find a way to legally keep them in custody then I am willing to risk the short slide into tyranny that you guys seem to be terrified of.

Posted by: Blue Neponset on May 22, 2009 at 11:02 AM | PERMALINK

Sorry, Obama, but you've got two choices:

1. If there isn't enough info to press charges, you let them go. Period. We do it to folks in the U.S. all the time.

2. If you do have enough to charge them, then charge them. Period. We've done it before (1993 WTC bombers, McVeigh, et al), so why the hell not now?

To do what he suggested -- just keep folks locked up forever, without charges, because the might do something -- is to do what oppressive regimes do. It's what Bush did. It's wrong. It's illegal. It's im-fucking-moral. SO STOP IT!

This is NOT what I voted for.

President Hopey McChange is screwing this up in a big, big way, and it's nice to see pressure from the left trying to get him to follow the rule of law. Whether it works remains to be seen, but to say one thing, and then do the opposite, is the type of hypocritical horseshit he was supposed to stop. He's not.

Do the right thing, Obama, or all that good will you've tried so hard to build will come crumbling down. Quickly.

(I have to note: this is what separates us from the GOP -- our ability to criticize our own when the make a mistake. So next time some rightard comes in and tries to act like we're the lockstep lemmings they are, show them this thread, Maddow's show, etc. Then tell them to STFU.

Posted by: Mark D on May 22, 2009 at 11:23 AM | PERMALINK

hate to copy and paste so much, but greenwald:

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.

and

(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"?

and

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?

Posted by: benjoya on May 22, 2009 at 11:28 AM | PERMALINK

While I'm a big fan of Maddow's, I was quite annoyed at the segment last night, because it didn't address the question: What do we do with someone who has conducted aggression against us, can't be convicted in a legal process, and shows every sign of being a danger to us if he is released?

I understand the concern about preemptively locking someone up for crimes they MIGHT commit, but Maddow focused on the threat against ordinary U.S. citizens (with the reference to the Department of Precrime). Not once did she mention the name Khalid Sheikh Mohammed. She didn't examine the question of what we should do with him.

Posted by: The Pop View on May 22, 2009 at 11:29 AM | PERMALINK

Being the victim of torture isn't the same thing as being innocent.

Nor is it the same thing as being guilty. And we know from investigations into the subject that the majority of inmates at Guantanamo were turned over by bounty hunters or rounded up in security sweeps, and being innocent, have since been released.

Because they were tortured any evidence of their guilt is inadmissible

I don't believe this is true. Any confessions arising out of torture may be inadmissible, but any other evidence of wrongdoing is perfectly admissible. And confessions resulting from torture are notoriously irrelevant anyway, as people will pretty much say anything to stop being tortured.

You are correct in that there is a dilemma here: some of the guilty have been tortured, potentially tainting some evidence against them.

But what's worse is that some of the innocent have been tortured as well, and so we have potentially turned them into enemies of the state.

Perhaps we should attempt a show of our good faith and commitment to justice by prosecuting the leaders of our country who ordered their torture in the first place.

Posted by: trex on May 22, 2009 at 11:31 AM | PERMALINK

Release them? Is that the plan?

If you have someone in custody who has shown every indication of intending to participate in catastrophic attacks against the US, how could you with any conscience let them go, knowing full well that they will do all in their power to murder US citizens?

I am utterly opposed to the "enhanced interrogation" program and the abuses Hilzoy has spent years documenting. At the same time, it is trivially easy to imagine situations where we might capture individuals whose release would directly threaten the lives of American citizens, as well as others in the world.

There must be some legally acceptable way to deal with such people. As others here have said, we lock up dangerous sociopaths who are deemed "a threat to themselves and to others" with nary a concern for habeas corpus. We keep prisoners of war in custody, generally for the duration of hostilities.

I feel that some of you are not fully considering the ramifications of arresting & detaining terrorists only *after* they carry out an attack.

Posted by: Jordan on May 22, 2009 at 11:52 AM | PERMALINK

Bombs of hope are audaciously dropping in our occupied territories.

Military tribunals have made a quick return.

Obama and his proggels are turning out to be quite astute at managing the empire.

Posted by: Agi on May 22, 2009 at 11:52 AM | PERMALINK

God, I just can't get over the amount of fear people have for these detainees.

Is it really suicide to uphold American ideals of justice and let these people go? Are they guaranteed to launch some massive attack against American citizens and our military. Have we no means of policing these people and convicting them with legally obtained evidence?

ARE THESE PEOPLE SUCH BADASS MOFOS THAT WE HAVE TO COWER IN FEAR FROM THEM AND OFFER TO COMPROMISE OUR SYSTEM OF JUSTICE TO ACHIEVE SOME PERCEIVED SENSE OF SAFETY?!!

I tell you this: no matter what these people are capable of doing if we let them go, holding them forever without charges will create THOUSANDS more in their place. Other governments will sneer when we launch our usual "rule of law" sermon when they violate human rights. We'll just be another shitty country that will do anything when the going gets tough.

It's time for Americans to stop being such fucking cowards and assume a small level of personal risk in order to maintain core values.

Deal with it.

Posted by: bdop4 on May 22, 2009 at 11:57 AM | PERMALINK

"A small level of personal risk"?

Good luck selling that line to people with kids who go to school and/or spouses who work in NYC, DC, LA, etc.

Posted by: Jordan on May 22, 2009 at 12:19 PM | PERMALINK

Two comments along the same lines that are easy to address:

What do we do with someone who has conducted aggression against us, can't be convicted in a legal process, and shows every sign of being a danger to us if he is released?
If you have someone in custody who has shown every indication of intending to participate in catastrophic attacks against the US, how could you with any conscience let them go, knowing full well that they will do all in their power to murder US citizens?

It's really not that difficult:

1. You gather evidence that they really did, or planned, aggression against the U.S.

2. You charge that person, letting him or her know what the charges and evidence are.

3. You present that evidence in a court (tribunal, etc.).

4. The defense presents its case.

5. A judgment is made.

6. The person is either put away forever (or even executed, if it's someone heinous), or they're let go due to lack of evidence.

You know, the same process we've had for pretty much every other war we've waged and in which we tried people for crimes. Including the Nazis, for god sakes!

Why the hell is this so hard for people to understand?

Posted by: Mark D on May 22, 2009 at 12:45 PM | PERMALINK

So some of you seriously believe that the biggest, baddest nation on earth, with the most powerful armed force ever assembled, the most mind-boggling military technology ever created, a defense budget that is ten times bigger than those of our biggest rivals COMBINED and a constitutional system of justice that has been used as a model for the rest of the world and that has survived every crisis thrown at it for well over 200 years will be brought to its fricking knees by following the rule of law that made us the most powerful nation on earth and allowing a handful of cave-dwelling misfits with not much more than bold ideas of armageddon to go free because we can't legally hold or prosecute them?

That's sad.

Really sad.

Posted by: Hammers on May 22, 2009 at 12:48 PM | PERMALINK

If we can't find a way to legally keep them in custody then I am willing to risk the short slide into tyranny that you guys seem to be terrified of.

And the funny thing is, you think you're being contemptuous of other people's level of courage.

You can't make this stuff up.

Tell you what, Blue. Since you're utterly ignorant of world history, were asleep for the last eight years and are completely unconcerned about the law and the principles this country is founded on -- "short slide," for the love of Pete -- how about you look for ways to abridge your own freedoms that doesn't fuck with the rest of ours? Can't you get your boyfriend to tie you up or forbid you to go outside or something? Do you really have to take the constitution and justice system down with you because your fears have paralyzed your ability to reason?

Posted by: shortstop on May 22, 2009 at 12:59 PM | PERMALINK

Mark D: If I understand Obama correctly, that's exactly the plan for dealing with captured terror suspects, both those at Guantanamo & Bagram, and those we might capture in future. The exception would seem be a handful for whom evidence can't be presented in court, either because it's inadmissible (tainted by torture or other violations of law) or otherwise unavailable. And even those guys will get some kind of review process.

Hammers: cave-dwelling misfits managed to kill 2998 civilians one day about 8 years ago. Being big, bad, & heavily armed can be a liability when the enemy is nimble, clever, and unscrupulous.

Posted by: Jordan on May 22, 2009 at 1:00 PM | PERMALINK

Why the hell is this so hard for people to understand?

Because some people simply do not possess any inviolable principles. For them, every decision is situational and there are no moral parameters that cannot be stretched for what these folks shortsightedly perceive as an advantage in the moment. Pushed into a situation where they feel threatened, they find out there isn't anything they refuse to do.

Posted by: shortstop on May 22, 2009 at 1:07 PM | PERMALINK

Jordan: and because once in the entire 233 year history of this great nation some cave-dwelling misfits actually succeeded in killing a vast numbers of americans on their own hallowed soil I'm supposed to spend the rest of my life wetting my knickers and cowering in a corner while also tearing up everything I believe in and argued for and held as SELF EVIDENT TRUTHS for my entire life under some hazy notion that sacrificing my own hard won essential liberty would purchase me a little temporary safety?

Thanks, but no thanks.

Posted by: Hammers on May 22, 2009 at 1:09 PM | PERMALINK

Hammers: I think what Obama's team is looking for, and what I would hope for, is a constitutional, legal way to imprison people when there is good reason to think they are involved in planning such attacks. I think in all but a very small number of cases this can be done without even bending Constitutional protections or the law...conspiracy & racketeering laws, protective custody laws & similar tools are already on the books.

Posted by: Jordan on May 22, 2009 at 1:17 PM | PERMALINK

@ Jordan:

""A small level of personal risk"?

Good luck selling that line to people with kids who go to school and/or spouses who work in NYC, DC, LA, etc."

Other than the bullshit neocon statements that have been making the rounds over the past 8 years, show me how these people will inflict any more harm to us than the tens of thousands of terrorists who are already out there.

9/11 wasn't the result of some brilliant coordinated plan implemented by omniscient super beings. It largely succeeded due to a MASSIVE FAILURE by the Bush Administration to properly prepare our intelligence and enforcement agencies to identify and respond to a string of clues that led to that fateful day.

They blew off Clinton's report when they took office, they completely ignored Richard Clarke, they sneered at the August intelligence briefing and then on 9/12 said, "who could have foreseen this?"

It may be politically expedient to cater to people's fears and sacrifice this country's ideals to provide FALSE SECURITY to fearful people, but is that really leadership?

Oh and BTW, did I even mention that we wouldn't be trying to re-capture these guys? I don't think so.

I think our agencies, competently run, can handle this.

Posted by: bdop4 on May 22, 2009 at 1:22 PM | PERMALINK
cave-dwelling misfits managed to kill 2998 civilians one day about 8 years ago. Being big, bad, & heavily armed can be a liability when the enemy is nimble, clever, and unscrupulous.

Um ... actually, they were not that clever. In fact, Bush was warned of the attack, but was too busy playing ranch hand to do a damn thing about it.

And that's what so many seem to forget: 9/11 could have been prevented. We had the info, yet no one acted on it.

These clowns were smart, but they weren't masterminds. They were the beneficiaries (a horrific word in this case) of an incompetent administration that was asleep at the wheel.

That administration then proved the terrorists right: the reaction was one born of fear and terror. We tossed aside all we stood for, in exchange for some twisted illusion of safety. And in the end, we wound up becoming the very thing we were trying to destroy.

Personally, I've had enough of that shit.

It's time to return to our principles, to let the rule of law stand, and to do so with the realization that our principles are what makes us who we are as a nation. Period.

It's either that, or just admit that we've lost and live in a constant state of panic and worry.

Which do you choose?

Posted by: Mark D on May 22, 2009 at 1:28 PM | PERMALINK

bdop4:

"show me how these people will inflict any more harm to us than the tens of thousands of terrorists who are already out there."

All terrorists aren't the same. The guys who run into crowded cafes or drive trucks loaded with C4 into a checkpoint are recruited & motivated, but they aren't trained. People who can pull off a coordinated operation like 9/11 have to be highly capable, trained, and prepared. There aren't many people like that, and still fewer people capable of organizing and leading such people.

"Oh and BTW, did I even mention that we wouldn't be trying to re-capture these guys?"

Let me get this straight. You want to release these individuals, then send US personnel after them to try and catch them and take them down, only with better evidence this time. Do you think this is some kind of game?

Posted by: Jordan on May 22, 2009 at 1:31 PM | PERMALINK

Jordan: How is a principle that I'm prepared to abandon whenever it's challenged really a principle? (don't worry, it's rhetorical, I already know the answer and so do you).

Posted by: hammers on May 22, 2009 at 1:33 PM | PERMALINK

"A small level of personal risk"?

Good luck selling that line to people with kids who go to school and/or spouses who work in NYC, DC, LA, etc.

An unintentionally revealing statement. The people who live in these and other large cities, of course, are not lying awake at night worrying about terrorism. In overwhelming numbers, they vote Democratic, they know the Iraq War was the wrong response to 9/11 and they want Gitmo closed.

The bridge and tunnel crowd and the rural/suburban parents of college students, however, are apparently wetting their pants with trepidation.

Posted by: shortstop on May 22, 2009 at 1:35 PM | PERMALINK

"These clowns were smart, but they weren't masterminds. They were the beneficiaries (a horrific word in this case) of an incompetent administration that was asleep at the wheel."

Let me introduce you to the US government. If you think competence & well-oiled cooperation is the norm, then you must've never worked for a federal agency or the military. The fact that horrendous errors helped the 9/11 plotters is no reason to decide we've got nothing left to worry about. It's certainly no argument for releasing the 9/11 plotters in custody today.

"It's time to return to our principles, to let the rule of law stand, and to do so with the realization that our principles are what makes us who we are as a nation. Period."

I'm going to have to reject your false dilemma. The current laws of war are obviously a bad fit when applied to a terror group like al Qaeda. So the correct solution is to adapt our laws in a way that maintains our priciples, while preventing us from doing dumb things like releasing dangerous terrorists so that they can plan & organize further attacks against us & our allies.

Posted by: Jordan on May 22, 2009 at 1:38 PM | PERMALINK

So the correct solution is to adapt our laws in a way that maintains our priciples

Need any help with that?

Posted by: John Yoo on May 22, 2009 at 1:40 PM | PERMALINK

May I be of assistance?

Posted by: Jay Bybee on May 22, 2009 at 1:42 PM | PERMALINK

Somebody rang for some legal writing help?

Posted by: David Addington on May 22, 2009 at 1:43 PM | PERMALINK

Shortstop:

"The people who live in these and other large cities, of course, are not lying awake at night worrying about terrorism. In overwhelming numbers, they vote Democratic, they know the Iraq War was the wrong response to 9/11 and they want Gitmo closed."

Hi there. I live in NYC. My wife & I watched the towers burning from the roof of our apartment. I worked in the 18th St. area at the time, and we both had friends who worked downtown. I vote democratic, know the Iraq war was utterly wrong, want Gitmo closed, think the torture program was a horrific violation of everything the US stands for.

And yet, I can see the folly in waiting for terrorists to launch attacks before trying to stop them. What can ya do? I don't fit in your pigeonhole.

Posted by: Jordan on May 22, 2009 at 1:43 PM | PERMALINK

Nicely put.

Posted by: catherineD on May 22, 2009 at 1:47 PM | PERMALINK

Jordan: "It's certainly no argument for releasing the 9/11 plotters in custody today."

Wait, we have 9/11 terrorists in custody today? And we know they are 9/11 terrorists? I have a fucking great idea. Instead of releasing them, why don't we try them, convict them, and incarcerate them? It's the American way!!!

Oh, wait again. We don't have evidence? So you know they are 9/11 plotters... how, exactly?

Posted by: hammers on May 22, 2009 at 1:48 PM | PERMALINK

Did not have the time to look at all the comments, but it seems a lot of people are getting hysterical.

Some of the people at GITMO really are Al Qaeda fighers, and since we are 'at war' with Al Qaeda, that does allow us to detain these people as POWs.
We hold them for the duration, but we can't torture them. I don't know what the fuss is.

This is exactly what the Geneva Convention was designed to handle. The rules are very clear.

Posted by: snds4x4 on May 22, 2009 at 1:49 PM | PERMALINK

We hold them for the duration

...of our "war with al Qaeda?"

Posted by: shortstop on May 22, 2009 at 1:53 PM | PERMALINK

And yet, I can see the folly in waiting for terrorists to launch attacks before trying to stop them.

And yet, not the necessity of producing evidence that they're terrorists in order to keep holding them. My, you're just full of surprises, aren't you?

Posted by: shortstop on May 22, 2009 at 1:57 PM | PERMALINK

Shortstop:

"And yet, not the necessity of producing evidence that they're terrorists in order to keep holding them."

I've pretty much said the exact opposite here. But if it makes you more comfortable to argue against a straw man, have at it.

Posted by: Jordan on May 22, 2009 at 2:03 PM | PERMALINK

Actually, Jordan, this is the strawman, and a mighty big, dry one it is: I feel that some of you are not fully considering the ramifications of arresting & detaining terrorists only *after* they carry out an attack.

If evidence can be produced that an attack is being planned, no one here is arguing that that person or persons shouldn't be charged and tried.

a constitutional, legal way to imprison people when there is good reason to think they are involved in planning such attacks

Amazingly, we have such a way. But it requires admissible evidence. Something tells us that your definition of "good reason to think" might not be the same as our legal system's.

Posted by: shortstop on May 22, 2009 at 2:18 PM | PERMALINK

Coming late to the party, but here goes...

A bunch of us just got through nailing a bunch of Congressional Dems for not supporting Obama, now we're doing the (sorta).

I'm not saying that liberals should back Obama blindly and I understand the contradictions in what he's saying. I've been disappointed in a lot of things he's done going back to the campaign.

That said, I think it's worth looking back a few months and realizing how close we came to having McCain/Palin to bitch about... How close we came during 8 years of BushCo to losing all semblence of democracy... and the really f'd conditions we face on multiple fronts right now.

Obama's sitting in 30-years worth of doo accumulated over 30-years' of rightward policitcal movement. I'm not sure how idealistic he can be -- or any of us would be -- in his situation.

So, while not excusing what he's doing, I think I can understand how the ideal might be the enemy of the good more often than it appears from the outside. Time will tell.

We certainly are dealing with a better set of problems than we were -- or might have been.

Posted by: beep52 on May 22, 2009 at 2:31 PM | PERMALINK

We certainly are dealing with a better set of problems than we were -- or might have been.

In case it wasn't clear from my comments, I absolutely agree with this statement. And I'm not disparaging Obama; I believe he's honorable, and faced with an exceedingly difficult political situation. At the same time, we must push for what is right and lawful and in line with our American principles and ideals.

Fortunately we are not fearful reactionaries or cynical power-mongers posing as "concerned" members of a right-wing political party, so we have the freedom to act in accordance with higher principles and hold our leaders to account.

Posted by: trex on May 22, 2009 at 2:47 PM | PERMALINK

beep52: What trex said, elegantly as usual.

Posted by: shortstop on May 22, 2009 at 2:54 PM | PERMALINK
Let me introduce you to the US government. If you think competence & well-oiled cooperation is the norm, then you must've never worked for a federal agency or the military.

The problem with that line of reasoning is that the government didn't need to be a well-oiled anything. All it needed to do was act on the information it had in its fucking hands.

Bush didn't, because he didn't give a shit. He was too busy playing President than actually acting like one.

So don't try and chalk 9/11 up to "just the same old government screw up!" It wasn't.

The fact that horrendous errors helped the 9/11 plotters is no reason to decide we've got nothing left to worry about.

How's about you address points people have actually made, rather than creating them out of whole cloth?

Show me one person who has posted that there's "nothing left to worry about." Just. One.

All we want is for our nation to not cast aside the very foundation upon which it stands.

I guess for some, fear has replaced principle.

It's certainly no argument for releasing the 9/11 plotters in custody today.
Again, how's about dealing with what people are actually posting, rather than bullshit strawmen of your own design? Posted by: Mark D on May 22, 2009 at 3:00 PM | PERMALINK

"keeping americans safe" is campaign rhetoric now. Remember, politicians want to be re-elected. Period. As long as they can be re-elected. So politicians will keep gabbling about "keeping Americans safe" as long as they think it'll give them some electoral benefit.

If promising every American an ostrich in their backyard would get politicians re-elected, by God, they'd promise it. Repeatedly.

What's really depressing about all this is the grotesque cynicism of our political and media classes, and worse, the contempt they clearly feel for the people they're supposed to be serving. That's not a good thing.

Posted by: LL on May 22, 2009 at 3:28 PM | PERMALINK

I voted for Obama and admire him on many levels. But I am deeply disappointed with his statement about "preventive detention".

I agree that we cannot use the "evidence" that the Bush Maladministration "collected". But that's not to say that new evidence cannot, and should not, be collected.

Those of you defending "preventive detention" need to keep in mind that we DON'T KNOW if any of the current Gitmo detainees ARE terrorists. We simply cannot base an argument on that assumption. To the extent possible, this must be determined, and only those for whom there is conclusive evidence can be detained as POWs under Geneva Convention guidelines.

I think that Obama really intends to do just this, but I would like him to clarify what he means by "preventive detention". Perhaps that would allay some of our fears. But if he means what the term sounds like, then shame on him. SHAME ON HIM. And in that case, I hope he listens to us lefties and walks that one back.

Posted by: Wolfdaughter on May 22, 2009 at 4:41 PM | PERMALINK

Hilzoy misses the point. Entirely. The President was implying quite strongly that he viewed the "last category" of detainees as "prisoners of war". One does not need to have committed a crime to be a prisoner of war. The legal question is, are they? If not, then they should be released to their home country. If they are, then we have every right to detain them under the Geneva Conventions until such time as Al Queda and/or the Taliban surrenders, ceases all hostilities and enters into a treaty with the US. Or, they could be part of a prisoner exchange -- oops, I forgot .. Al Queda and the Taliban do not keep prisoners of war, they just behead them. Worth noting is that if many of them are turned over to the country of their citizenship, their lifespans will probably be measured in hours, maybe days.

Posted by: MJ on May 23, 2009 at 3:18 AM | PERMALINK




 

 

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