I share all of Glenn Greenwald’s concerns about Obama’s speech. I think Glenn is especially poignant when he laments that millions of Democrats will now begin supporting infringements on civil liberties that they decried when they were done under Bush. And I think this especially important because it impacts me personally. I have long predicted that Obama would feel compelled to detain at least a small handful of prisoners indefinitely, and without trial. I was, therefore, disappointed but not at all surprised to hear Obama admit as much today. But I have one major difference with Greenwald. He argues quite convincingly that what is wrong under one president is wrong under another, and that to switch principles is simple hypocrisy. I think that is generally true. But I also am willing to listen when there is consensus on an issue between people as different as George W. Bush and Barack Obama. I have the gravest reservations about the idea of introducing indefinite detentions for even a handful of people. But I am willing to hear out the case. Obama didn’t make the case today. He needs to. I want to know precisely why it is that these handful of detainees cannot be tried in either a regular court of law or in some kind of revised military commissions court. I have my suspicions as to why this might be the case, but I want to hear the reasons spelled out in plain english.
Maybe it is as simple as an irredeemable violation of due process rights. If a dangerous criminal cannot be tried because they were denied a lawyer and a speedy trial by the Bush administration, is that something that Military Commissions cannot overcome? Is it something to do with the illegally collected signal intelligence? Whatever it is, we need to have the clearest understanding of the necessity of this kind of unprecedented violation of the most basic tenets of law. Only armed with this information can I make a fair determination of the wisdom of this move. It is too simple to insist that the law is the law and what was wrong under Bush is wrong under Obama. That’s the default position, but it is not necessarily the only position. There are presumably some reasons why the Obama administration has rethought their positions on these issues. We need a better understanding of those reasons.
Most importantly, we must resolve the detainee issue in a way that causes the least lasting damage to our laws and Constitution. It may be the case that national security compels us to do some violence to our laws. But, if so, we certainly can minimize that damage and make sure it is not ongoing.
I’ll be waiting for explanations.
He lost me at the beginning of the speech. When he said his single most important responsibility as President was to keep the American people safe.
No. It is to preserve, protect and defend the Constitution.
I agree with Greenwald. Lots of pretty words. Obama always gives a good speech. I recognize the value in being able to give a good speech – the value is being able to bring people along with you to support policies that they wouldn’t otherwise support. Most of the time Obama uses that power well. But in this case Greenwald is right – he’s using his speech skills to bring liberals to support this abomination.
If I were a political blogger I would not be willing to hear out the case. There is no case to be made for indefinite detentions without trial.
None.
since you are a lawyer, help me out with something.
If an ordinary U.S. citizen were denied the right to a lawyer, not issued their Miranda rights, and denied a speed trial from six years, could a case be brought against them in a regular court?
How, exactly, do you get to a point of complete spoilage. I understand that information not obtained illegally is still valid, but what about process?
I am not a criminal lawyer. I cannot definitively answer those questions, perhaps one of the other lawyers can.
I wouldn’t want to rely on my criminal procedure class from 20 years ago.
But be clear that “process” is a constitutional issue. If a failure in process that tainted the proceeding must result in dismissal of charges, then it must. And then the person gets released. Even if they really are a murderer. Or a rapist. Or a child molester.
I do understand that. I also understand that we’re not going to endanger our national security and our citizens by releasing the mastermind of 9/11 into the general population because the Bush administration fucked up the process. Under ordinary law, I suspect he would be released even though he is a mass murderer. I don’t have a problem with not releasing him. What I have a problem with is the idea that we can’t even try him under some military commissions scheme.
I don’t have a problem with not releasing him.
I do. I’m very disappointed that you don’t. Very disappointed.
I see no difference between him and any other person who plots and/or carries out mass murder. If they hadn’t won the case against Tim McVeigh he would have been released.
And I’ve never heard of “extraordinary” law.
Of course I’m still not clear how you release someone into the general population who has no permission to legally be in the United States. Sounds like an immigration issue to me. Not an issue we had with Tim McVeigh.
okay. Imagine if rather than trying McVeigh in court, Clinton had had him waterboarded 183 times and held in a brig without access to a lawyer for seven years.
Now imagine that Bush became president in 2000 and decided that was not how we should operate and that terrorists should have the same rights as anyone else. Yet, he isn’t going to endanger people’s lives by releasing McVeigh into the general population and wants to try him as he should have been tried from the beginning. Is he compelled to let Clinton’s sins dictate the outcome?
Perhaps so. But 9/11 was even bigger than OKC, and KSM isn’t a U.S. citizen. The reason I am so insistent on holding Bush and Cheney accountable is precisely because without doing that you don’t create the predicate that justifies doing extrajudiciary steps on people like KSM.
If what the prior president did precluded any ability to convict McVeigh then he should have released him after the court dismissed the case or he was found not guilty or whatever the legal process found.
That’s the law.
Is he compelled to let Clinton’s sins dictate the outcome? What are you talking about? If they dictate the outcome they dictate the outcome. The president is compelled to uphold the rule of law.
But you are missing the entire point on this. It isn’t his decision to make. It is the court’s decision.
You understand the possibility that a court could make new law on this don’t you? After all, a court once found detaining Japanese-Americans in interment camps to be perfectly legal. Who knows what they’d decide this time. Or maybe they’d decide that there were special circumstances in this matter that justified a delay in trial. I’m not saying what they would decide would be something I’d agree with – but you have to give the process the ability to play out.
You set foot on the slippery slope you have your foot on and there is no going back.
Okay. Here is where we differ.
I do believe that under ordinary circumstances, what you say is true.
But…when an administration abandons the laws and thereby endangers the country, I do not believe that a subsequent administration must be bound by that abandonment of the law if that means endangering U.S. citizens
Ordinarily, we operate under the assumption that no government will violate the law to such a degree that extremely violent criminals will have to be released. As long as that is true, we can shift from one administration to the next fairly seamlessly. But that is not the case, the new administration is not under a total obligation to risk national security to atone for the sins of their predecessor. And that is my point.
I have never disagreed with you more on anything. Ever.
I think what you believe is more dangerous to this country than letting those people go.
Not that any of the dangerous people would be let go – they’d end up in the highly expensive immigration detention facilities that Blackwater built for us. But at least they’d have due process first.
But if that wasn’t possible and they had to be released – so be it.
I’m with you. The law is the law, and we can’t just selectively follow it based on the whims of individuals.
There is no ‘so be it’ to it.
Even if there were some perverted sense of justice where the crimes of Bush trumped all other considerations of justice, there would be politics. Not one member of Congress of either party would be likely to sign off on your ‘so be it’.
You make no sense.
Not one member of Congress of either party would be likely to sign off on your ‘so be it’.
Who cares? They don’t get a “sign off”.
And we don’t need an appropriation to release anyone. Releasing people doesn’t take money.
who cares?
When the president takes an action that is unanimously opposed by Congress, you have a rather severe problem.
You can care or not care, but you must be willing to live with the consequences.
Admittedly, we are dealing in some hypotheticals here. But we’re really talking about detainees that we have failed to repatriotize, failed to convict in a court, failed to convict in a commission, and that no one will support releasing into the general population.
I want to know why that might happen. But I am willing to entertain the argument that it might. And, yes, you need money to deal with such cases.
There was at least one member of the court that said that the Constitution isn’t a suicide pact. That’s true. All I am saying is that I can entertain situations where Bush’s fuck-ups should not be used as iron-clad demands that we put people at needless risk.
Here’s the difference between you and me. I am talking about the law and you aren’t. You are talking about politics.
I understand that some people break the law in the name of politics. I don’t condone it. I don’t excuse it. I don’t try to convince anyone that it is unavoidable. I don’t do anything but condemn it.
You are the opposite. At least in this case.
No. Obama needs no new appropriation to release someone. Even someone in Guantanamo. There is a military budget that supports planes flying back and forth right now. He doesn’t need a new plane to fly someone to the US he can use one of the existing ones. Once here, all he has to do is open the door. He doesn’t need Congress’ ‘sign off’ to open the door. Unless Congress passes a law saying he can’t do it. Then they can be detained as it gets fought all the way up through the supreme court – again and again.
Oh wait. I think there are already laws in effect that say you can’t just let foreign nationals into this country without going through immigration which might have some fairly broad restrictions that might cover these people – unless they have diplomatic immunity which I assume these people don’t have. So maybe Congress doesn’t have to pass a new law and maybe there is a LEGAL way to detain them until some other country will take them. And if there is then I am not adverse to him using it.
And this is the bullshit we have to deal with:
Yes. It has been ordered for these 17. And once ordered the order must be obeyed.
What’s your point? That putting up with right wing bullshit is just too much of a pain so we shouldn’t comply with the law so that we can avoid it?
Mary, I am very much with you here, and for me it is not only about the law, but about human rights, which cannot be denied to any human for any reason without risking the entire concept. Add to this reality the fact that the uighurs in this case are innocent victims of the United States’ so-called “war on terror”, and any opposition to their release and careful protection is inexcusable.
the point isn’t about the Uighars. It’s about the fact that a court ordered those people released in this country because we could not find anyone acceptable to take them off our hands.
Therefore, the Obama administration knows that anyone they cannot deport might be ordered released in the general population if they can win an acquittal. You were suggesting that we could detain them under immigration violations. I don’t think that is true.
And that fact is the key to this entire controversy. What Obama is saying is that there are a class of people at Gitmo that he considers too dangerous to release into our population, that he cannot deport, and that he cannot be sure of convicting in court. I want to know why he cannot convict them in court. But I don’t dispute that they should not be released into our population.
and the ruling came from a lower court and the Supreme Court hasn’t ruled yet on release into the mainland. Govt. response to the Supremes is due May 29 and it will be interesting to see what the DOJ argues.
The thing that you don’t like about legal process is that it slow and it NEVER answers all questions at once and that seems to drive you crazy. I guess you could move to a dictatorship and avoid this, but I wouldn’t advise it.
At some point (maybe May 29) the Obama administration will make arguments to the court about why these particular aliens should NOT be released into the US to roam free in the general population. The argument will not be that they don’t deserve release, the argument will be about what “release” means. And the court will rule and hopefully that ruling will give some guidance.
An argument that the president has no power to unilaterally admit an alien freely into the mainland US (whether by release or otherwise) may not technically be an immigration issue but it is the the most analagous situation to be considered by the Supreme Court when it decides where these people should go when they have not been approved for entry into the US but they cannot be returned to their country of origin.
What I’m saying is that it is a process and the process hasn’t gotten to the point where the question about admission into the US has been ruled on by the court. But if the court rules that they MUST be released into the general population, then they must. I predict the court will not rule that. I also predict that not all questions will be answered and we’ll be back in court on it later with new questions.
has the Supreme Court even decided to hear the case?
As I understand it, the Appeals court said that the District Court judge erred in thinking he could compel the president to release aliens into the United States.
so, isn’t the issue at hand what the courts can and cannot do?
but as I understand it a court ordered the release and then the DC circuit issued a ruling barring that type of order and the Uighars are appealing that ruling to the supreme court. I presume the Obama administration will make lots of arguments about why the DC circuit is right and a court can’t order a release.
According to this analysis that I was reading yesterday:
I think it is possible that the court could overturn the DC circuit to the extent that it is a blanket ruling that NO release order may ever be issued but also give the appellate courts standards of review on the question of whether release is appropriate or not appropriate in the instance.
“a court ordered those people released in this country because we could not find anyone acceptable to take them off our hands.“
The court ordered those people released because even the Bush administration admitted that they were innocent and were only imprisoned “by mistake” – i.e., they and their families are innocent victims of the United States government. You could not find anyone to “take them off your hands” (what a cold term to use) because as part of a Chinese opposition group they are an international political hot potato, not because there is anything wrong with or dangerous about them.
And I submit that after what you have done to them and to their families, their safety and welfare are very much your responsibility. You owe them big time and should not be casting about for someone to “take them off your hands”.
whatever. I don’t disagree with you about the Uighurs and I don’t understand why you insist on behaving as if I do. I support their release. They can come to my town if they like.
You appear to be suggesting that the human rights of these clearly innocent Muslims are so unimportant that they should be sacrificed in order to protect the Democratic party from the abysmally ignorant, bogotted spewings of this moron. You appear to be suggesting that American domestic political considerations are more important than protecting human rights.
Please tell me that I have misread you. Please tell me that you are not suggesting that the lives and fundamental rights of seventeen innocent human beings are so trivial in your mind that they should be denied in order to protect the Democrats from dealing with this kind of ignorant drivel.
And for the record, this man has not the remotest clue what he is yapping about. Just for starters he has obviously made up his own definitions of Shari`a, and jihad, and has some interesting fantasies about Muslims who believe that Shari`a should be the law by which they live. And to protect your beloved political party from ignorant bigots like this you are willing to violate human rights and the law?
If I have not misread you, then it is an outrage to call yourself a progressive. If I have misread you, please clarify your point.
clearly innocent? I stopped reading at that point. Obama is going over these cases point by point. He isn’t going to indefinitely detain anyone who is clearly innocent. Bush did that. Obama is not going to do that. He talked about creating 5 baskets to deal with 5 different situations. One of those is for people that are clearly innocent. The other four are for people that are clearly not.
You are missing the point entirely.
Obama does not have the power through the constitution to ‘Obama is going over these cases point by point’ and then decide to lock up people forever. He is not a king.
You stand America on its head and want all to say up is down. The standard with convictions is not only be released if ‘clearly innocent’, the standard is only being locked up if ‘guilty beyond a reasonably doubt’.
You advocate locking up innocent people, period. And you want them locked up because someone says they did something (or worse, might do something in the future) in secret.
That makes you as right wing as Cheney. He also believes the POTUS is the Supreme Leader, he also believes the POTUS is a War Leader.
BTW, Cheney believes that the POTUS can do the above TO ANYONE, even US citizens plucked off US streets. I assume if you believe it can be done to people already a ‘danger’ to us, then it can be done to anyone.
nalbar
nalbar
you are begging the question several times.
First, you tell me something isn’t constitutional before that has been decided.
Second, you tell me the president doesn’t have the power to do something before that has been decided and ignoring the fact that he specifically said that he is envisioning a system that involves the participation of both Congress and the Courts.
Third, you call these people innocent when they are a subgroup of the people at Gitmo that are considered among the most dangerous.
On all fronts, you are making an argument that has no responsiveness to mine because it assumes things that are not true or are not decided.
It is also not the case that people that are essentially prisoners of war have to be treated exactly the same as criminal defendants. The Courts have the final say on that, not the president. Anything he does must ultimately be approved by the SCOTUS. He knows that. He isn’t asserting anything else.
This is why I began asking earlier this month whether it might not be a good idea to get the Court to kind of informally review his plan to make sure it wasn’t something they were just going to strike down and bring us back to point one. He can’t do that, but I hope he’s judged the Court correctly on this because I don’t want to see this drag on and on.
I’ll let my post stand as is. I think your readers are smart enough to know what I meant.
nalbar
What Glenn said;
http://www.salon.com/opinion/greenwald/2009/05/22/preventive_detention/index.html
I don’t disagree with Glenn except to the degree that I have an open mind. I have the same questions. I do not assume, however, that any preventive detention program will extend to people not currently held. Glenn’s blind spot is to always think people will (or should) apply principles logically. I bet he never saw Bush v. Gore coming.
I think (I hope) when you say The other four are for people that are clearly not. that you mean that they are not clearly innocent.
Rather than mean that they are clearly not innocent. It is not for Obama to decide who is clearly not innocent. But he can decide that they are not clearly innocent …. and prosecute them or subject them to a military tribunal if appropriate.
Yes, clearly innocent. The Bush administration has even admitted that the Uighurs were picked up “by mistake”, yet they continued to imprison them at Guantanamo, keeping them from their lives and their families, thus destroying not only their lives but those of tens of other people. I know of at least one of them who told his wife to divorce him so that she could be free to marry someone else so she, at least, could have some hope of a life. Even the bigoted asshole in the clip you provided is not suggesting that the Uighurs are guilty of anything. What he is complaining about is their ideology, and suggesting that simply because they are Muslims they are a danger to “our way of life”. So yes, clearly, and admittedly innocent.
The problem with the Guantanamo Uighurs is not that they are in any way dangerous to the American people or even a threat to “our way of life” (whatever the hell that is). The problem with the Guantanamo Uighurs, and the reason they should be released into the general population in the U.S. is that they were associated with a group opposed to the Chinese government, and because of that they are a political hot potato. They will be persecuted if they return to China, and other countries do not want to take them for fear of angering China.
After falsely imprisoning them (and perhaps worse) for seven years, in some cases destroying their families, and robbing them of their lives and their freedom the United States has a moral if not a legal obligation to make sure they have their freedom, a safe place to live, and that at the very least their basic human needs are taken care of for the rest of their lives. It is the absolute least the United States can do after what they have done to those people.
I am still not sure what your point was in choosing that particular clip. Are you suggesting that the Guantanamo Uighurs should be robbed of their freedom for the rest of their lives in order to protect the Democrats from the kind of criticism that sick, ignorant bigot is making? Or are you suggesting that for some other reason those clearly innocent people and others like them should be imprisoned for the rest of their lives rather than being given their freedom and a home in the U.S.? Or were you making some other point?
And what DO you think the U.S. should do about the Guantanamo Uighurs and other innocent Muslims who have been unjustly robbed of their freedom, and worse, as a result of Bush’s so-called War on Terror<sup>TM</sup>?
I’m only talking about the Uighurs for one reason and it has nothing to do with their innocence, which I don’t dispute. It has to do with the fact that a judge ordered them released in the general population. I agree with that ruling, by the way. But it shows that the administration may face the same choice with other detainees who are not (in their opinion) safe to release.
That is the key conundrum they are facing and it informs what is going on.
Now, I do not believe it is moral or legal to have indefinite detention. I cannot see how it is necessary without some kind of precise explanation.
What I want is for Obama to explain what factors are preventing prosecution. Based on what he has said so far, I can’t and don’t support this. But I am willing to listen since it appears that his administration looked this over and came to some consensus on this need for it. Let them explain it.
May I suggest that if that was your point you picked as bad an example in the Uighur case as it was possible to pick if you wanted to make your point clear.
The Uighurs’ unequivocal innocence is the single most important factor in their case. There is absolutely no reason on earth they should not be released in the U.S., and as a matter of fact it is utterly shameful that the United States government did not release them, bring their families to the U.S., give them all citizenship if they wanted it, provide housing, any assistance they might need to rebuild their lives, and a generous living allowance for them for the rest of their lives. It is a travesty that the U.S. has tried to induce some other country to “take them off their hands” as you so coldly put it when it is the U.S. that has a clear obligation to them and to their families.
Hurria, you haven’t misread Boo. He never was a true progressive; he’s a “moderate centrist” in the proper vein. Just imagine, if he’s willing to go along with this (with a little preliminary prodding, of course), the millions of other “progressives” who will be only too happy to “preventive detain” brown people for the sake of “keeping us safe.”
Politics first…per usual.
okay, here’s a test.
Tell me what issues other than this one where I am a ‘moderate centrist’. What issues do I share with say Blanche Lincoln or Evan Bayh or Tom Carper that I do not also share with Bernie Sanders?
Give me anything.
I don’t really know. But just from this blog posting, I see that you have very few principles outside of being a Democratic operative. At least Blanche Lincoln and Ben Nelson don’t pretend to be what they are not.
I am offended by anyone who is positively disaffected by the concept of “preventive detention.” There is no excuse for that. NONE whatsoever. The gov’t screwed up and the gov’t should face that consequence, making it doubly more difficult for this travesty to happen again.
What this “preventive detention” really is is a cloak for this gov’t to hide behind because the “evidence” obtained from these “terrorists” cannot be used in a real court of law.
When you use the defense of “the politicians agree with me,” then it’s all downhill from there, Miss California.
maryb,
Judge Rogers tried your immigration approach but she was in the minority. The majority found her opinion confusing for the obvious reason that you have t to actually attempt to enter the country to violate an immigration law. They slapped her down pretty hard.
Kafka would have loved this decision:
I am not a lawyer but will take on your analogy.
You either try him or let him go. The reason is simple.
In America a person is innocent until PROVEN guilty. That means in a court of law. The POTUS (or the AG) cannot just decide a person is guilty, he has to be proven guilty, with all that implies (the right to confront his accusers, etc). McVeigh WOULD BE INNOCENT.
So according to the eyes of the law, until proof is offered, there IS NO GUILT. Tainted evidence IS NOT EVIDENCE. So if something is tainted, well it does not count.
But let’s stop screwing around here. We all know that the reason some of these ‘evil doers’ cannot be tried in Federal Court is because they were either tortured or the evidence against them was gathered through torture. So in an open Federal trial that would come out. AS EVIDENCE! Meaning proof of a crime (torture being the crime). If the defendant was tortured he would get on the stand, if the witness was tortured the defendant could demand he get on the stand and explain how. Not to mention the witness might recant.
That means the US would look bad in two ways…. we tortured people (probably in particularly brutal ways), and then when we have evidence (testimony is considered evidence in court) we refused to prosecute the torturers.
All of this means that a refusal to prosecute is a political decision, simply to save America embarrassment.
You can come up with all sorts of rationalizations of why we have to lock people up. But without a trial it is not ‘justice’ and there is no ‘conviction’, thusly no guilt.
So, by definition you are locking innocent people away…..forever.
How did I do?
nalbar
“I see no difference between him and any other person who plots and/or carries out mass murder.“
The difference is that he is brown, he is not an American, and he is Muslim.
i certainly have a problem with not releasing him.
look, le tme put it in local terms. we’ve had this ongoing scandal in PHilly involving a cop and an informant:
well gues what happened last week: a real criminal’s case was dismissed:
I have no doubt the perp is as dirty as sin. But hey, the evidence is totally tainted and so he has to go. Blame the cop who fucked it all up.
Same with these guys in guantanamo. I’m sure the ones they wnat to keep indefinitely are shitty people, but the government fucked up its own case. I don’t see what other choice we have that keeps our values.
and hey, they can always get the cia or someone else to take care of things quietly like they did with that troublesome Palfrey woman.
brendan,
what if I took you at your word? You would rather keep the facade of justice and remedy it through assassination than do any violence to the facade.
I could even consider your argument if only I was once willing to do away with hard principle. But my slackening of principle doesn’t result in anyone getting shot through the brain or ‘hanging’ themselves in an outhouse.
I would think it to be the principle of justice, not a facade. We know KSM to be a “bad guy” who will no doubt work to bring us harm if he is released, but we can’t prove what he has already don in a court of law due to tainted evidence. Release him – as our justice system demands – and then deal with him like those on the Afghan/Pakistan border without so much fanfare. Justice is done and national security is served – where’s the problem?
it was cynical humor, man, in the face of the cynical clusterfuck the bush administration left America. we have guys that our laws dictate we have to let go, but we know those people are going to come back to haunt us if they get a chance.
I don’t really endorse sending the cia or whoever to take care of people we don’t like. i think you know me better than that.
That’s not to say it doesn’t, or wouldn’t, happen.
This is the one part of an otherwise wonderful speech that concerned me. I not only want to know the “why” though. I want to hear more about the process they’ll put in place for oversight of these decisions.
I’d like more information on all of that.
Oh, definitely. I want to know the procedures, but I really want to know why it is necessary. I have difficulty coming up with reasons why this could be acceptable. I mean, I would be utterly opposed to letting Khalid Sheikh Mohammed go, let alone set him free in the United States. I’d be willing to bend the law to some degree to prevent that from happening. But that presumes he’s guilty of what everyone says he did. And if he’s guilty, why is it impossible to prove that in a court of law or a military commission. I’m not saying there can’t be good reasons. I assume there are good reasons or there would be no consensus within the Obama administration about this. But I need to understand the reasons because it doesn’t make obvious sense to me.
I can see how the fact that KSM’s existence and role in the 9/11 attacks was learned from coercive investigation of Abu Zubaydah might be hard to introduce in a court. (Although, according to his FBI interrogator, he got that info without waterboarding him). I can see how statements from KSM himself might be inadmissible. I can see how certain intercepts might have been obtained illegally. I can see how he can argue that he was denied a lawyer and a speedy trial. I can see how his right to see confront the witnesses against him could be problematic.
But tell me what the problems are. Be specific. I’ve got an open mind but I am skeptical.
I totally agree – and actually you have raised some points that begin to swim in my head.
For example, I am not one that thinks that our current legal system will likely be able to handle a prosecution of Bush/Cheney for torture in the way most progressives have been calling for. The system can be so inane that I have a hard time trusting something this important to it. If we look at how it has worked out when huge corporations have been called to task for obvious crimes (ie Exxon) it has taken decades to do so and with verdicts that seem to wash down the accountability.
I say all that because you just made one of the best arguments above about why we need to try…we need a clear marker for situations like this one we’re discussing so that we can sort out the effects.
But our current justice system is only designed to look at specific crimes committed by individual people (or perhaps a conspiracy to commit a specific crime). In this situation, there are ripple effects of crimes that overlap and flow back and forth. We can look at one at a time at eye level, but that misses the overview of flying overhead and being able to sort out the connections.
So I’m not so sure our current legal system is capable of sorting out something this big. I think we need a more broad over-arching look at what happened, what were the effects, and how do we define justice in a situation like this. We can’t afford to get this one wrong!!!!
So I guess that might be another place where I disagree with what Obama said yesterday. I’m not sure I trust our current systems to handle this one.
Its frustrating, because that doesn’t leave me with clear answers…just questions that I’d like to see better addressed than the black and white responses I hear so often.
…covered yesterday, and while he agrees with most of what Isikoff said, he did have a disagreement over the one part that people like Rachel Maddow waved around like a banner:
It doesn’t matter to me one bit what reasons Obama has for this policy. The constitution doesn’t permit it.
Greenwald said it best, to paraphrase: Bush convinced one half of the population of the need to throw out the constitution, Obama’s role is to convince the other half.
Exactly.
I don’t know if Obama knew that was his job going in, but he knows it now. Guess who told him.
we’ll find out what the Constitution permits. I am not going to prejudge that either.
A few days ago I raised the question of whether or not it would be permissible to just ask the SCOTUS what is permissible. It appears that it really isn’t. But don’t be shocked if we get the equivalent of something between a Dred Scott and Bush v. Gore decision out of the SCOTUS on this one. They may make a really bad decision, or they may make a really dubious decision and then try to quarantine it.
We live in an era when people believe only the second and tenth amendments in the Constitution count all the time and the first one only counts if you can use it against your political opponents.
The rest is “a goddamn piece of paper” to quote Dubya.
POWs can be held for the duration of hostilities, and tried for war crimes by a military tribunal (I think it’s a Geneva requirement that the same trial rules apply to both your own troops and POWs). Perhaps this would apply to Taliban prisoners.
They still can’t be tortured, or subject to harsh interrogation, etc. Rumsfeld is a war criminal.
Bush has created an intolerable situation, where there are NO good outcomes, only a choice between horrible alternatives.
.
those who cannot go on trial in the U.S. are all non-US citizens most likely from Pakistan, Yemen and Saudi Arabia. Do what you usually do: repatriate/extradite them to their country of origin for “justice”. For home-grown suspects of terror, who have to be released, follow them 24/7. That’s what the Dutch do when they had to release some suspected Islamic extremists.
"But I will not let myself be reduced to silence."…And if you really want them in jail in the US forever, hand them over to the US Immigration authorities to be deported to their home country and at the same time arrange for their home country to not allow them to return – ever. Then it is up to US Immigration to either hold them or release them in the US. Given the situation, they will wind up holding them – forever – because there is no place to send them.
Simply: If we are a country of laws then the law is capable of judging all. There are no exceptions. Exceptions make the law irrelevant period. There can be no good guys and bad guys that are prejudged under the law….only defendants. No 9/11 criminals are excepted under the law and we judge each man in a fair legal proceeding period. If you believe otherwise then this should not be your country. You should live in a place where they preordain what you will be guilty of before you come to trial.
I should have said “exempted” above. Hate spellcheck makes me look smart when I’m not.
I am a criminal defense lawyer and, like many, my reflexive reaction is that Obama is wrong even to contemplate detaining people who “cannot be tried.”
But like Booman, I am willing to contemplate the possibility that there may be some other rubric to consider.
For example, I do not know the ins and outs of military law, so I do not know if there is any kind of analogous situation that might have legal authority, notwithstanding that it is unfamiliar to most of us.
Off the top of my head, I wonder specifically about the situation where there is no country to which a dangerous individual could be deported. What happens if there is literally no place in the world that would accept these people? Is it possible that, in such an extreme situation, a legally cognizable basis could exist to justify what Obama is doing? Ordinarily, we treat dangerous non-citizens (before or after prosecuting them) by deportation. But if that is not an alternative, does the Constitution really compel us to let them stay on American soil?
Further, while it is easy for us to take principled stands, we should recognize that Obama is governing in the real world here. We should at least consider what would happen if he made the stand so many on the left preferred. The political fall-out would have been huge, I submit. In fact, it’s possible that Congress would not have permitted him to take such a stand. Again, we should consider the ramifications here, rather than assume all of the merits are on one side.
Ordinarily, we treat dangerous non-citizens (before or after prosecuting them) by deportation. But if that is not an alternative, does the Constitution really compel us to let them stay on American soil?
That’s what I was thinking above. That it is similar to other situations where an alien cannot remain in the US but no country will take them. And it is a real world political solution.
I reject Booman’s idea that this is some “extraordinary” situation that has never been encountered in any way before. There are precedents to look at that came down in other contexts that can be applied (or distinguished) in this situation.
well…what did we do in those cases?
I have no idea.
that makes it pretty hard to debate your rejection of my assumption.
I don’t remember your assumption. Remind me.
but when I ask you what we did in these past cases, you say you have no idea.
When was the last time a U.S. president took a dangerous criminal and tortured them, denied them habeas corpus rights, kept them imprisoned without access to lawyers for seven years, and then the next president had to try them successfully in court?
I don’t remember that precedent, so help me out?
I stand by that statement. In the sense that every situation that comes before the Supreme Court is unique and that these particular facts have never been encountered before is not an extraordinary occurrence at the Supreme Court. It happens all the time that the Supreme Court sees facts that have never been before it before.
The fact that I don’t know what precedents are out there doesn’t meant that the court won’t look at what has happened in other contexts and either apply it or not apply it and distinguish this set of facts. That’s what courts do.
I don’t know what you want from me on this. I’m trying to think of legal ways the Supreme Court could NOT release a dangerous foreign person who could not be deported to another country into the general population of the United States. I surmised that there is precedent for not doing that among the immigration law rulings. I don’t know if there is or not – but if I were Obama I would try make the argument. Your commment seems to be that this is such unique set of facts that the court will have no choice but to order them onto US soil because they were abused.
the court can be as creative as they want to be. And I think they will be because I don’t there is any case law to apply. They can’t set up a system of indefinite detention (at least, not as that is normally understood) and they can’t force the president to do something he considers a threat to national security (or can they?). What does winning in court mean if there is no remedy?
Either way, I want more information because the necessity for this is pretty hard for me to accept.
On the topic of creativity:
Keep in mind that Obama is making an attempt to limit his “preventive detention” to a pretty narrow category of people, i.e., those who cannot be tried in civilian or military courts and are at Guantanamo due to now-repudiated policies of a prior administration.
It is at least theoretically possible that Obama is not endorsing all kinds of preventive detention, even if some think that his distinction is untenable.
I have no idea what’s happened in those cases, but as I suggested already, I think it is worth knowing.
My hunch is that the answer might show the law is more nuanced here than we think.
Many of these innocent people can’t be tried because of manufactured evidence that will be used against them.
People in Gitmo are STILL be tortured.
I was glad my husband lived to see Obama elected. Yesterday I thought that I was glad he didn’t live to hear this.
Cheney and the neocons win again.
Oh…I mentioned that stupid plot in NY before…From Talking Points Memo
OK, this really puts the nail in the coffin of any claims that those four guys arrested last night in connection with a plot to bomb two New York synagogues were some kind of highly dangerous terror cell.
Calling the men “amateurs every step of the way,” the AP reports:
Relatives said the defendants were down-on-their-luck men who worked at places like Wal-Mart, a landscaping company and a warehouse when they weren’t behind bars. Payen’s lawyer said he was “intellectually challenged” and on medication for schizophrenia. Marilyn Reader said he has “a very low borderline” IQ.
…
Payen, 27, did time for attempted assault — in 2002, he and others fired a BB gun out an SUV window, hitting two people in the head. He snatched purses from two women later the same day, said state Division of Parole spokeswoman Heather Groll.
So: An intellectually-challenged schizophrenic BB-gun-shooting purse-snatcher, and a stoner ringleader.
From http://www.defenselink.mil/news/newsarticle.aspx?id=25489 —
Here’s what I don’t understand: how are these couple of dozen guys, broken and compromised by years of abuse, so dangerous to the US? If they were released with a thousand dollars in their pockets in New York, what could they do that can’t be better done by a thousand other people?
What are Americans so scared of?
Is there nowhere to extradite these people to?
Boo,
I have noticed that you seem to always, without question, think of issues like this in a political sense, never in a legal or personal sense. The job of the POTUS is not to “keep us safe” (roll eyes); it’s to protect and uphold the Constitution of these United States. I am so disappointed in you. You defend yourself by stating that Congress will go with you. Well, that’s a horrible defense because you chose a purely POLITICAL body to uphold a LEGAL framework. That’s patently ridiculous. The law is the law. If a few “terrorists” get released because of shoddy workmanship by the previous Administration, that’s the price we pay for having a Constitution. I will not hide under my bed and quiver and quake uncontrollably because of your fear of the dispassionate use of the law. And, as a black man, I found his speech yesterday to be even more scary. As soon as you will be convinced that it is “what’s best for you to keep you safe” will be the moment that it expands to being yet another racial dragnet that can be deployed whenever POTUS says “it’ll keep you safe.”
Obama’s mask fell of yesterday. I knew that I didn’t trust Herr Slickness (he makes Bill Clinton look like Steve Urkel) and my misgivings came to full fruition yesterday. You’re willing to go along with “Preventive Detention” just because a brown, happy face has been applied to it? Boy, that’s disgusting! I am ashamed of you and all other “liberals” who will shuffle right along with our modern day Uncle Tom to the new beat.
I quite enjoy my Constitution. And I don’t find it very disingenuous for the Brown Jesus to wipe his ass with it.
your missing all the times I have said that share all of Greenwald’s concerns and do not see why this is necessary. Just because I have expressed an open mind on this issue doesn’t mean I will be convinced. I’m not convinced.
However, before you lose all faith in Obama, remember that he is not going to defy the SCOTUS on this issue. Whatever he does will, in the end, be constitutional. Don’t be surprised though, if the Court winds up issuing a crappy decision.
Boo,
To commit to an “open mind” with regard to clear Unconstitutional actions makes the rest of the equation a charade and a foregone conclusion. You will go along with it because the Unconstitutional action doesn’t offend you in the least. You agree with Greenwald superficially and intellectually, but you’re political senses and justifications are kicking in to overdrive. And those political senses are what seems to drive most of your writings. Politics first…..
If you were not thoroughly offended by “preventive detention” as Unconstitutional and a complete and total utter violation of human rights (for brown people, not our White Friendly Christians such as Timmy McVeigh or the Unabomber), then you have shown yourself uncensored.
I don’t need to see the “4” when I have already seen the “2+2=”.
Is the Constitution just something for people like you to try to get around “to keep you safe”?
One more thing:
This “open mind” thing that you have is exactly how the seeds of conspiracies of any kind are planted.
For example, one friend shares that he’d like to rob a bank with his trust AK-47. You have one of three choices:
You have chosen 3. And when you convince yourself that those benefits have merit, that’s when all other considerations are out the window. And it’s on! All it takes is one spark to burn down a democracy.
a bit of an overreaction.
Here, by the way, is what Obama said:
Can we debate that rather than bullshit?
Obama has a constitutional duty to interpret and follow the law. He can’t just do something that is unconstitutional and then just say it’s up to the Supreme Court to tell him he can’t do it. Well, he can, but he would be committing an impeachable offense if he does.
That’s what is happening here. The cowardly Democrats would rather violate the constitution than suffer the wrath of Dick Cheney’s hissy fit.
Obama and the Dems know full well what they’re doing; they would rather cave-in to Dick Cheney and KNOWINGLY break the constitution than do the right thing. There is enough precedent in Anglo-American law to know that human beings have habeas corpus rights and that continuing the ad hoc approach to weaken these rights is unconstitutional either in whole or in part. The RIGHT-WING supreme Court held so last year. Let me repeat–probably the most right-wing Supreme Court in this nation’s history is the only body standing up for our basic liberties! Not the Democrats that run scared from wet noodles. Right wing jurists! No thanks to the cowards that make up the Democratic party.
But you’re right to be worried about a bad Supreme Court precedent (and the opinion in the late 90s allowing some longer periods of detention in immigration cases was a bad precedent that Bill Clinton did not oppose–one of the first examples of centrist Dems caving in on individual rights and allowing a precedent to come back to haunt us later). Unfortunately, the only hope to preserve some liberty in this country is a right-wing judiciary (and thanks Dems for caving in on this issue as well so we have such a right wing judiciary!). I hate to say it but I have more hope that right-wing jurists will do the right thing than I do in Obama and the cowardly, unprincipled sacks of shit otherwise known as surrender Donkeys. Antonin Scalia has more integrity than Obama on this issue.
So please! Antonin Scalia save us from the tyranny of Obama and Bush’s despotic un-American detention policies! You’re our last hope.