What's the difference between being "held as a prisoner of war" and being "held indefinitely." There isn't one, right? We're talking about holding terror suspects as prisoners of war indefinitely. So there's really no exceptions to the rules you listed; the problem is with the very definition of a "prisoner of war."

We don't know what the hell these people are anymore, because the whole concept of "war" has violently evolved. These aren't simple criminals violating federal statutes on American soil, and they aren't enemy soldiers in a declared dispute captured and held until a truce or surrender. They're something entirely new, from a whole new type of "war," and we have no freaking clue how to deal with them.

All this "we're a nation of laws" talk is missing the entire debate. We're not talking about criminal detention, we're talking about a long-established system of war detention, and how we should adapt the concept to a new, scary, and confusing conflict.

Thank God that someone is willing to say this. It is only the foundation of everything we are supposed to believe as Americans. Thank God for Patriotism, even when it is not easy - maybe even more so, because it is never truely easy. Thank you for even caring when so many do not - when so many don't even remember what it means to be American. Thanks for upholding the dream, even if it is not reality - yet. May we become the people we were truly meant to be. Never forget the people who fought and died before you that made that possible. Never give up hope, and never fail to educate those who seek it.

Dave,

Thankd for the Buchco drivel on the topic of "throw out the constitutional guarantee of innocent until proven guilty and hand the power to imprison arbitrarily and indefinitely over to the DECIDER, because we are engaged in a new kind of war..."

Your result, Dave, makes us "just like them" because you advocate trading the protections for the constitution in the hope of enhancing our security....and the result is no more principles worth fighting for. With nothing worth us fighting to preserve, war is over, we lose!.

So, Obama is crafting a kinder and gentler revocation of habeas corpus. How effing wonderful.

I'm sympathetic to the mess the administration found upon taking office, with Gitmo and other prison facilities around the world housing a certain number of known terrorists who were tortured in our custody and can't successfully be prosecuted.

That said, I'm terrified of any president asserting that he or she can, with occasional "presidential review", indefinitely detain individuals with no trial. Am I supposed to be pleased with whatever restrictions Barack Obama chooses to place on his mighty detention power? Why? Even if he strictly adheres to the limits he places on himself, Barack Obama isn't going to be the last president of the republic.

As we've seen with secrecy, war, and a host of other topics, once a power is accepted as part of the executive's prerogative, future administrations will fight like hell to retain that as their own. It's the nature of power. Presidential authority to hold people forever without trial is contrary to every notion we have of liberty. Gitmo is a nightmare for which I have no solution, but I know that asserting this right makes Barack Obama a tyrant, just as it made George Bush one, and Obama's legacy will always be tainted by his efforts to impose monarchical powers for himself. These are tragic times we're living through.

Progressives have long been accused of having a "pre-911 mindset." Indefinite detention (A euphemism for imprisoning without cause) is a power that fits the 1700s definition of tyranny. I'd call supporters of that as having a "pre-Magna Carta mindset."

The lines have been blurred between war rules and peace rules. There are no uniforms, no pledges of loyalty that can be proven, and no easily definable chain of command. But you can't just switch from one wartime rules to US Justice code and expect fair prosecutions or people detained under the prior. Some of these people were picked up on anonymous tips. There will be no fingerprint evidence or Afghani witnesses. Most evidence will probably be linked to interrogation processes, that even if they don't constitute torture, are certainly coersion. And then you have the unfortunate fact that many of these remaining detainees have probably been so mistreated that they are a danger, regardless of whether they were when the were detained or not. But there is a certain absurdity to the idea that we should merely let all these people go, and tell the populations they are released into, "Oh well. He's yours now."

Reposted from Swampland:
Take the case of Walid bin Attash.

Walid bin Attash, who is accused of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.

Little information on bin Attash's case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

Now, put your presidential hat on for a few minutes, take yourself outside of the liberal echo chamber. What do you think would be the consequences of releasing this man outright, given our dysfunctional political system and the absolute hold that the Republicans have on the mainstream press? There would be a political and media firestorm the likes of which we have never seen. It would literally fracture the Democratic Party into pieces. And what if he committed another Cole-type terrorist act?

If you yourself had the responsibility to decide whether to release this person, would you really be that reckless? It's easy enough to make unequivocal pronouncements of right and wrong when you aren't the Decider. And sure, you could take a f*ck you attitude and let the chips fall where they may. That's what the bushies did, but then, they had the mainstream press on their side, remember. We don't have that.

I think this exec order is being considered in order to kick the can down the road a bit. It may be (in this particular case) that Yemen will come around, or other evidence may surface, or a road to solution may otherwise open up.

NOTE: blockquote above should have extended up through "while in CIA custody."

"I also don't envy him the politics of it."

Uh, Hilzoy? You might want to consider that Obama isn't primarily worried about the political dimensions of this issue. He might be worried first about protecting American citizens from harm. That's because he's, you know, the President and might possibly feel a little responsibility on the matter. I actually agree with your reasoning, but you need to stop considering this as merely an intellectual question of policy.

Mike

notDave --

You guys are missing the entire debate.

We have a long established, legal precedent of war detention (Amy, George Washington would find it really hard to swallow war detention as somehow against "the foundation of everything we are supposed to believe as Americans.") It is now and has long been perfectly legal to keep prisoners of war; it's all up in the Geneva conventions:

http://en.wikipedia.org/wiki/Third_Geneva_Convention

But we can't keep doing it the way we have in the past, because the whole concept of war has changed.

We imprisoned Nazis without trial, charge or the presumption of innocence throughout WWII for no other reason then they were fighting for the wrong side. We treated them humanely (in theory), and then set them free once the war was over.

The problem here is we're in a new kind of "war" that will never end. So it's not as morally clear-cut to hold these prisoners in the same way. At the same time, the current fight against al-qeada and other terrorists is more than mere police action (these captures still come in the midst of a declared dispute between warring parties.)

So the question is: how do we update the long-established, legal practice or war detention to the new conflict? Or do we abandon the whole practice of taking prisoners of war altogether? That's the debate. All this "it's antithetical to all that is my patriotism and the fireworks with my flags and the magna carta" stuff doesn't really recognize what people are actually talking about here.

"...you need to stop considering this as merely an intellectual question of policy."

Excuse me? "An intellectual question of policy" you say? Hilzoy was making a case regarding the Constitution and our legal system. That is nothing but "an intellectual question of policy" to you?

I'm sure that, as you write, Obama is concerned with keeping Americans safe. However, he has stated more than once, accurately I think, that we don't have to give up our values and laws in order to do that. Hilzoy seems to agree with that also, and like me, is very concerned that Obama seems to be walking that back.

Dave @ 11:47, we understand perfectly well what you are saying. We've just dismissed that as the load of neo-con claptrap that it is.

We are not in a "new war". We are not in a war at all. Terrorism is not a military issue, it is a political and social issue. The only successes the Bush regime ever had against terrorists was by having the FBI find and catch them, and then having the DOJ prosecute them in the civilian courts.

On the other hand, all attempts to treat this as a military issue have only made the problem worse. The ham-handed tries to have the armed forces bomb them into the ground and lock them up forever has only served to make more people hate us. That helps terrorist groups with their recruiting and therefore makes us less safe than we were before.

Treating this like a war doesn't work. Treating accused terrorists as POWs is merely another facet of that already-failed policy. It hasn't worked, it will continue not to work, and it should be abandoned for the failure that it is.

Shade Tail - Are you arguing that Afghanistan is not a war, or that many of the detainees were not imprisoned as a direct result of the military action there?

Danp: Not only was I *not* arguing that, I fail to see how you could possibly think that I was. I was arguing about terrorism in general.

More specifically, I was pointing out that we have been treating terrorism as a military issue, rather than the political and social issue it really is, and doing so has been a huge failure.

But if you'd like to discuss Afghanistan specifically, then I'd be happy to mention that, in fact, we are *not* waging war on Afghanistan. We're fighting the Taliban and Al Qaeda. And we're doing a piss-poor job of it, largely because Bush got us bogged down in Iraq but also because our entire Afghan strategy has been more ham-fisted militarism that, again, has only made the problem worse.

Shade Tail,

So then you would advocate against taking POWs, because you don't believe terrorists should be fought militarily. Right? That's fair, and perfectly legitimate. There's a good chance you're right, too; terrorism is probably better treated as a political issue, best fought with criminal-like investigation and diplomatic engagement.

But AUMF 2001 declared war. Because of that declaration, the Bush and Obama administrations were legally authorized to take POWs. There's nothing anti-constitutional about that. And we most definitely have troops right now engaged in military actions against terrorists. Should soldiers in Afghanistan be barred from taking enemy fighters capture and detaining them indefinitely? Because that would be a big big change from legal precedent in this country.

I understand the frustration with the Bush and Obama approaches to fighting terrorism, and the argument that we should treat the threat as socio-political, and not military. But it's ridiculous to argue the entire concept of war detention to be anti-constitutional, bringing us back to the dark ages or whatever.

The real debate is over the whole concept of the "war." So long as Obama is choosing to approach this conflict at least somewhat militarily, I'm glad he's trying to update our system of war detention to be more in keeping with American values.

I fail to see how you could possibly think that I was.

Since Hilzoy's post was about what to do with detainees, and Dave's comments were as well, I assumed your response to Dave was also. If your argument is that we never should have dealt with terrorism by invading Afghanistan, I can buy that. But it seems to me that it's a little late to say it's not a war, or that war rules don't apply. And even if you make the technical argument that we're fighting Taliban as opposed to a country, you still have the same issues of how to handle large numbers of captured enemy fighters, where there is no common court or civil control. What do you argue when one insists on being tried in a Taliban court, since that was the ruling power when many of these detainees were arrested? I mean, shouldn't they be subject to the laws of the land they're in? At some point, shooting at us in Afghanistan doesn't seem to be an appropriate case to try in a US court, and therefore you have to apply war rules.

Um, not everyone captured on the battlefield is entitled to prisoner of war protection under the Geneva conventions. In fact, we have made the determination that no one in Afghanistan is and all of our prisoners of war in Iraq (taken in 2003) were released years ago. If a prisoner is not part of an uniformed force that abides by the law of war that prisoner does not receive POW immunity (but is entitled to humane treatment). That's all that the GCs require. Now American laws may (and do) require something more but not the GCs. For example, quite frankly the Geneva Conventions would allow us to summarily execute Taliban prisoners. Thankfully, US law as now interpreted wouldn't.

DanP, the US does not (and never has) recognized the Taliban as a government, sovereign power or regular military force. As such, Taliban prisoners are not prisoners of war. They are subject to Afghan law or to US law if they have committed crimes for which the US claims universal jurisdiction.

Danp: "Since Hilzoy's post was about what to do with detainees, and Dave's comments were as well, I assumed your response to Dave was also."

Now I'm even more confused. Of course I was writing about our dealings with the detainees. I was pointing out that treating them as POWs is a part of an utterly failed strategy.

For some reason, you seem to have thought I was arguing about what we have been doing. I wasn't. I was arguing about what we should start doing now.

"But it seems to me that it's a little late to say it's not a war, or that war rules don't apply."

But that's the thing: it isn't too late. It would be very easy to just flat-out declare: "We've been doing this wrong by treating it like a war, and now we're going to completely switch our approach."

And that's precisely what we should do, for the reason I've already written: treating it like a war has been a huge failure and therefore we need to fully change our strategy.

**And that includes how we deal with the detainees.**

Rule of law is the basis of our rights. Violations of that is rampant on the lower level. No wonder we are where we are
on the national level.

Dixie Burkhart
Facts Don't Matter
www.eloquentbooks.com/FactsDontMatter.htm
www.squidoo.con//Dixie-Burkhart

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