In law school, to illustrate a legal point, a professor will often use a set of hypothetical facts. When discussing "preventive detention," I think a similar exercise will be useful. In his post yesterday, Glenn Greenwald wrote:

Once known, the details of the proposal could -- and likely will -- make this even more extreme by extending the "preventive detention" power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a "combatant."

To me, the key question that the procedures to be developed must address is the designation of a person as a combatant and the availability of meaningful review of the designation. (The length of the detention is also important, and the government should be required to periodically, say every six months, justify continued detention on a case by case basis.) So let's think about what would be accepted as sufficient evidence of "combatant" status. More. . .

The latest round of Republican fear-mongering (preemptively embraced by the Harry Reid gang) predicts catastrophe if Guantanamo's involuntary residents are imprisoned within the nation's borders. Those who fear that American prisons aren't up to the task of detaining foreign suspected terrorists will likely feel their personal threat levels rise when they read that the Bureau of Prisons routinely transfers prisoners by buying them a bus ticket and sending them on their way to their new destination.

This AP story opens with the news that a 55 year old motorcycle gang member who finished half of his 24 year sentence for delivering cocaine got off the bus in Las Vegas, didn't get back on, and hasn't been recaptured. Losing the biker dude in 2004 must be a bit embarrassing for the U.S. Marshals, who clearly did not know he had $12,000 stashed in a Vegas bank.

Only after reading more than halfway through the story do we learn that more than 90 percent of federal inmates who travel by Greyhound are on their way to a halfway house. It makes no sense to assign federal marshals to supervise the travel of an inmate who can easily flee once he's dropped off at his destination. [more ...]

Looks like it's time for a little history lesson. Let's go back to 1895 and the Supreme Court decision in Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394 (later overruled on unrelated grounds.)

The Supreme Court, in Coffin, traced the history of the presumption of innocence, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy.

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

Here's the history: [More...]

I can't believe people are even debating this.

Our system of justice and the principles this country was founded upon do not allow the Government to hold people indefinitely without the filing of criminal charges.

If they did something illegal, charge them and try them. If they are acquitted, release them.

If there isn't enough admissible evidence to charge them, they get released and sent home. [More...]

There's lots of speculation that the Guantanamo detainees may be moved to Supermax at Florence, Colorado, home to the nation's supposedly most dangerous criminals. Not so fast. Right now, there's no room at the inn.

It would probably take the building of a separate facility. Or, the moving of our supposedly most dangerous criminals to prisons in other states.

As for the folks in Florence, many of whom have jobs because of the prison industry there, they have no problem with accomodating the Gitmo detainees:[More...]

The ongoing discussion of preventive detention is likely to spill over into the discussion of President Obama's Supreme Court choice, expected to come in the next few weeks. For example, Professor Darren Hutchinson notes that Solicitor General Elena Kagan, reported to be on President Obama's shortlist, stated in her confirmation hearing that she believes indefinite detentions of enemy combatants would be constitutional:

[Kagan] echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States is at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges. . . . Last year, the Supreme Court dealt the Bush administration a setback when it ruled these alleged "enemy combatants" have a right to be heard by a judge and to plead for their freedom. But the high court left unanswered whether accused terrorists and others with suspected ties to Al Qaeda can be held for years without a trial.

This burgeoning issue will certainly make for an interesting confirmation process as we may see Obama's choice get criticized from both sides of the ideological spectrum.

Glenn Greenwald links to Ambinder:

[Obama] was blunt; the [military commissions] are a fait accompli, so the civil libertarians can either help Congress and the White House figure out the best way to protect the rights of the accused within the framework of that decision, or they can remain on the outside, as agitators. That's not meant to be pejorative; whereas the White House does not give a scintilla of attention to its right-wing critics, it does read, and will read, everything Glenn Greenwald writes. Obama, according to an administration official, finds this outside pressure healthy and useful.

(Emphasis supplied.) Earlier today, I disagreed with a post Glenn wrote today on "preventive detentions," but Glenn's work, like Krugman's work on the economy, is invaluable. Not only to the policies, but to Obama politically as well. Glenn puts it well:

Via Tom at Law Enforcement Against Prohibition: New drug czar Gil Kerlikowske was on KUOW radio today, talking about his new role.

He called the idea of legalization "waving the white flag" and said "legalization is off the the charts when it comes to discussion, from my viewpoint" and that "legalization vocabulary doesn't exist for me and it was made clear that it doesn't exist in President Obama's vocabulary."

Regarding marijuana, he said, "It's a dangerous drug" and, regarding its medical benefits, he said, "we will wait for evidence on whether smoked marijuana has any medicinal benefits - those aren't in." [More...]

Broder takes the cake today (via Balloon Juice):

Cheney . . . . is scornful of the simplistic formulas . . .

Heh.

Speaking for me only

The New York Post has a useful little primer on the informant at the center of the alleged plot to bomb a Bronx synagogue. According to the Post, the informant is an upstate New York motel owner named Shahed Hussain.

Hussain became an informant after being busted on fraud charges; Hussain worked as a translator for the DMV and helped immigrants cheat on driver's tests. His bid to become an informant, according to the Post, was driven by a desire to win leniency on the fraud charges and avoid being deported to Pakistan. [More...]

Your turn.

This is an Open Thread.

Glenn Greenwald writes:

In the wake of Obama's speech yesterday, there are vast numbers of new converts who now support indefinite "preventive detention." It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of "preventive detention" and Obama's related detention proposals (military commissions).

I hope by now my ability to disagree with and criticize President Obama is not questioned. Thus, when I say that I think there may be merit in a detention regime (the military commissions proposal seems fatally flawed to me as described) that detains known combatants in a manner that is compliant with the Constitution and the Geneva Convention, I hope my argument can be addressed seriously. I do not think Glenn's post considers the possibility that President Obama's proposal may in fact be such a Geneva Convention compliant detention regime. See also Kevin Drum. More . . .