Just Say No To Preventive Detention

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...]

Obama's "prolonged detention" is a very slippery slope. What's next? Jailing people who are believed to be sympathizers of those who hate America? We'll be right back to McCarthyism.

This isn't a war with an end. Thanks to the Bush Administration, there will be groups of people who hate America and wish it ill for generations to come. That's the legacy we are stuck with. You can't eliminate it by continuing the same misbegotten policies under another name.

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    "Slippery slope" is too mild a term (5.00 / 4) (#2)
    by caseyOR on Sat May 23, 2009 at 01:25:33 AM EST
    for this. Today, during a liveblog at FDL, Sen Sheldon Whitehouse suggested that rules for "preventive detention" might be drawn along the lines of the civil commitment proceedings for the mentally ill

    The above link comes via Digby, who notes that this idea is pretty much the same as the involuntary commitments to psychiatric hospitals that were a hallmark of the Soviet Union. Is this really what the United States has come to?

    My god, what have we become?

    Whaaa? "political correctness"? (5.00 / 1) (#34)
    by oldpro on Sat May 23, 2009 at 11:38:45 AM EST
    "fake compassion"?

    As I recall, the U.S. government apologized and paid reparations to Japanese Americans who were interned in WWII.  That should take care of the PC comment.

    And FYI, one of my friends and several acquaintences were among the internees and there is nothing fake about my compassion for them and their sad experience at the hands of our government.

    As BTD would say, "speaking only for myself."


    It tookhalf a century (none / 0) (#47)
    by Cream City on Sat May 23, 2009 at 03:42:46 PM EST
    for Congress to commit to reparations for the Japanese Americans in our concentration camps, and even then, it was a paltry sum -- and even so, last I looked, not all had yet been paid.  And, of course, it could not be claimed by their survivors -- after half a century.

    Not what I'd call compassionate of us at all.


    All true, CC....but my (none / 0) (#52)
    by oldpro on Sat May 23, 2009 at 04:18:41 PM EST
    comment didn't have to do with time...only with an admission of wrongdoing by the government...finally.

    Re compassion, I was separating myself from my government and vice versa.  Personal compassion and acceptance that our government had been wrong is the only thing that eventually allowed for reparations and admission of wrongdoing.  If individuals don't change, the government can't.

    Sometimes they do it on the cheap...I agree.


    Of course most people don't (none / 0) (#64)
    by oldpro on Sun May 24, 2009 at 12:28:14 PM EST
    care what happens to those held in Gitmo but that does not equate to being "compassionate" towards terrorists.  

    Don't misstate the case.

    The evidence is that not everyone held in Gitmo is a terrorist...just as not all those held in US prisons are guilty...hence the success of the Innocence Project.


    a lot worse slippert sloping (5.00 / 1) (#10)
    by pluege on Sat May 23, 2009 at 02:31:43 AM EST
    Obama's "prolonged detention" is a very slippery slope.

    Its a lot more than a slippery slope, which implies you're doing something mildly disturbing, but it could lead to much worse. It can't get any worse than we already are with the obama/bush anti-rule of law, anti-Constitution, immoral rationalizing of criminality.

    This is the whole ball of wax. If you can ignore the law for one circumstance, then you flat out do not believe in the rule of law - there are no gray areas, complexities, special circumstances, or anything else. If you make up unprincipled rules for convenience then you've thrown the baby out - period. Which is exactly what obama/bush is doing.  

    you are right (none / 0) (#57)
    by superjef on Sat May 23, 2009 at 05:14:22 PM EST
      are goverment is going to hell,the question is why. something is very wrong here

    I may not know enough about McCarthy (5.00 / 1) (#15)
    by Jen M on Sat May 23, 2009 at 04:00:05 AM EST
    but I don't think what he was doing was this dangerous.

    Indefinite detention on suspicion of future misbehavior? First terrorists then, they start redefining terrorist. Redefine 'terrorist' broadly enough and there will be no need for criminal courts.

    But think of the children! (none / 0) (#17)
    by BruceM on Sat May 23, 2009 at 05:33:14 AM EST
    It's the new Obama Department of Terrorist Pre-Crime.  You know... for the children.

    McCarthy just grandstanded and annoyed people while invading their privacy.  He never even proposed to lock up anyone indefinitely because the only evidence he had that they were communists was gained by torture and thus can't be used in their criminal trial (not that it was ever illegal to be a communist in the first place).

    Someone should note that like being a communist, there is a first amendment right to hate america and mentally/emotionally support the terrorists.  As long as you don't take any intentional action that furthers or aids an actual, intentional terrorist act then you can hate whatever you want to hate.  Meanwhile Obama, like Bush, is giving all reasonable people worldwide some damn good, extremely articulable reasons for hating this country.  They don't "hate us for our freedom" they hate us because we lock them up for no reason, torture them, and won't let them go - ever.  That's maybe the best reason for hating a country that could possibly exist.

    Of course they also hate us because we're non-muslim infidels, but that's always going to be the case. As long as religion exists, faith-based terrorism will exist - it's nothing new (though yes, it can be committed on a much larger more dangerous scale with modern technology).  If anyone wants to eradicate the world of the mental disease known as religion, count me in.  But until then, faith-based terrorism is not going away no matter what we do.  So we should not sell out our values to solve an unsolvable problem.


    preventative detention (5.00 / 1) (#18)
    by stephen on Sat May 23, 2009 at 07:09:51 AM EST
    This point needs to be made, continually, and regrettably, that preventative detention has been in place in the U.S. a long time. Regrettably it was put in place by liberals, our own people, with little or no dissent. Specifically, people convicted of sexual offenses who have served their sentences may be held indefinitely without trial if an expert determines that they may pose a future danger to society. This preventative detention law, in effect in 12 states, was challenged in Washington state at least a decade ago and upheld by the Supreme court. The fact is that Bush et al have been using many laws put in place by liberals in search of safety in specific areas and merely expanding them. The Supreme court will uphold expansions if worded properly. Those of us who opposed these kinds of laws were shouted down by the fundamentalists within our own liberal world. We did not respect the safety needs of women, and so on. Such laws, and the anti-smoking laws are merely one other example, can be applied outside their original area, for it is the reasoning that is dangerous. Once embedded in law it is very hard to remove. We are all, regrettably, culpable in this travesty. It is not surprising that a liberal president is using the law in this way. We created the rationale to begin with.

    I'm not a lawyer but (none / 0) (#38)
    by oldpro on Sat May 23, 2009 at 12:11:57 PM EST
    don't I recall that the indefinite detention of sex offenders in my state (WA) 'after serving their sentence' is tied to their refusal or lack of completion of treatment while in custody?

    Yep, my state just put me in preventive (none / 0) (#48)
    by Cream City on Sat May 23, 2009 at 03:47:01 PM EST
    detention -- outdoors even in winters that can mean days on end below freezing, with the new smoking ban.  And only at the last minute was it amended to not regulate the outdoors!

    Interesting that I just came back from a long trek of errands around town and am seeing quite an outcropping of "covered outdoor patios" at local restaurants now, even in our "spring" -- so I wish I had invested in the popup portable tent business, as it just boomed here.

    My next annual winter party, I may go with the comic who had all the nonsmokers go outdoors. :-)


    Your outdoor patios will be next (none / 0) (#61)
    by nycstray on Sat May 23, 2009 at 06:17:22 PM EST
    first they send you outside, then they ban you from smoking in outside seating areas, even if you have a sep area for non-smokers. About 2 or so years is when they start on the second round iirc.

    Are they offering free stop smoking aides?


    I raised the spectre of McCarthy (5.00 / 2) (#28)
    by Anne on Sat May 23, 2009 at 10:04:00 AM EST
    yesterday, wondering if we were on the brink of that kind of era, where people become afraid to say anything - especially anything critical of the US government - for fear of being considered pro-terrorist.

    I have to say that the concept of preventive detention, combined with all the other horribly intrusive legislation that has been passed in the last eight years, just chills me to the bone.

    My memory is not a short one.  I remember the Obama who, prior to being elected, promised to fix or rollback or reverse a lot of the stuff that he explained he voted for at the time because it was "the best we could do," but who now seems to be have abandoned a legislative strategy - you know, one what would have him leading the Congress to do the right thing - in favor of just putting his own stamp, his own tweaks, his own shade of lipstick on the pig.

    He has already been faced with decisions where he had the choice to step onto the Bush path, or forge a new and better one, and he has chosen the Bush path; a couple more steps in that direction, and we are not going to find our way back for a long, long time.

    We were there a year ago (none / 0) (#49)
    by Cream City on Sat May 23, 2009 at 03:48:19 PM EST
    in that @#$$%!! campaign, at least among my family, former friends, and colleagues.  I learned.

    I can't believe we're debating this either (5.00 / 4) (#29)
    by mcl on Sat May 23, 2009 at 10:06:50 AM EST
    I'm horrified and appalled. As a lawyer who defends people in court, it's understandable that you would be disgusted by this abandonment of the basic principles of the western legal system, but what really terrifies me is the fact that the entire American population isn't up in arms about this.

    People, the Magna Carta prohibits arbitrary seizure without charges and indefinite imprisonment without trial.

    "Hallam...declares that `from the time of King John's Charter, it must have been a clear principle of our institutions that no man can be detained in prison without trial."
    [Magna Carta, William Sharp McKechnie, J. Maclehose & Sons, 1905, pg. 458]

    The Magna Carta. That dates from 1215. That's nearly 800 years this principle has been enshrined in western common law.

    What has gone wrong with us? All of a sudden we're abandoning the fundamental principles of western civilization -- habeas corpus, the right to a trial by a jury of one's peers, the presumption of innocence, the ban on torture, the ban on use of hearsay or evidence obtained by torture...  It's mind-boggling. America is returning to the middle ages.

    To add to the horror of this whole situation, most of the kidnap victims being illegally held at Guantanamo are almost certainly innocent. Examine the record of the trials of these so-called "terrorists," these allegedly murderous "worst of the worst" -- in virtually every single case, their trials have fallen apart. Judge after judge has thrown out charges against these so-called "terrorists" because there just wasn't any evidence that they were terrorists.

    Judge throws out Detroit "Sleeper Cell" convictions

    Not guilty verdicts in Florida terror trials are major setback for U.S.

    Prosecution setback in Brooklyn terror trial

    Prosecution sees setback in terror trial in California

    More setbacks for case against terro suspects -- judge says case is "light on facts"

    In reality, most of the inmates of Guantanamo seem to be people like the cab driver Dilawar -- innocent bystanders who got fraudulently sold to the American army as bogus terrorists by corrupt warlords who merely wanted to make a quick buck on the big rewards being offered by the U.S.

    Literally the only evidence against most of these people is the confessions that were tortured out of them. This is the kind of travesty that went on during the Grand Inquisition.

    Yet now Obama announces that he's going to restart military tribunals.  Why?  Because the flimsy "evidence" against most of the kidnap victims being illegally held at Guantanamo Bay does not meet the evidentiary burden required to bring them to trial in a federal court.

    Well, ladies and gentlemen, when the "evidence" against a suspect is so crappy and so thin that it doesn't meet the evidentiary burden for a trial, for the last 800 years we've had a way of dealing with that situation -- we set the prisoner free.

    What on earth has gone wrong with America? How can we have descended so rapidly into medievalism?

    What's most terrifying about all this is the clear trend here. This is obviously not going to stop. First, Nixon broke the law and got away with it -- he was allowed to resign without getting impeached and then tried and thrown in prison. Then Reagan got away with violating the constitution with signing statements and the Iran-Contra secret war -- and he was allowed to skate without charges ever being brought against him. Now, the previous administration has been allowed to get away with torture, kidnapping, murder, warrantless wiretapping, systematic violation of just about every one of the Bill of Rights except for the 2nd (right to bear arms) and 3rd (religious freedom) and 9th and 10th amendments (powers not explicitly delineated for the federal government are reserved for the states).

    The first amendment has gone away, courtesy of the protestors getting arrested and charged with felonies before they could even assemble in public to peaceably protest. Freedom of speech, right to peaceably assemble? Gone. (Yes, the terrorism charges against the Minnesota 8 have now been dropped, but three more felony charges have been larded on -- despite the fact that the people arrested never even got a chance to commit any of the acts they're being charged with!)

    The fourth amendment vanished long ago, courtesy of asset forfeiture and more recently warrantless wiretapping.

    The fifth and sixths amendments have disappeared -- people have gotten kidnapped off American streets and subjected to torture, with no opportunity to refuse to incriminate themselves, no due process, no right to a trial, no habeas corpus.

    The seventh amendment long since disappeared with the aid of asset forfeiture and outrageous civil damages of 150,000:1 as we see in the various RIAA cases.

    The eighth amendment has vanished, as torture has become institutionalized in law enforcement.  

    So what's left of the Bill of Rights?

    What's left of the constitution?

    And as we hurtle back to the middle ages, with people getting kidnapped off the streets, imprisoned without charges and without trial and subjected to kangaroo courts from which even the JAG officer assigned to defend the suspect resigned because the proceeding were so flagrantly criminal and so obviously unfair, in which the only evidence against them is the bogus confessions that were tortured out of them, we nevertheless get sensible rational Americans arguing in favor of these medieval atrocities.


    Just unbelievable.

    "In our genes..." (5.00 / 5) (#33)
    by mcl on Sat May 23, 2009 at 11:24:32 AM EST
    Nazis were perceived as enemies in WW II. Why didn't we torture captured German prisoners of war? The Third Reich surely represented a much greater threat to American civilization than the handful of ragtag fanatics skulking around in caves in Waziristan armed with nothing but box cutters.

    So I don't buy that answer. I also don't buy the notion that "it's in our genes." It has become incredibly fashionable over the last 20 years to blame everything on genetics. If this attitude is so deeply engraved in our genes, how come I'm so shocked and disgusted by torture and the abandonment of basic civil rights? Why are so many other Americans also appalled? Why does the eighth amendment of the constitution of the united states explicitly prohibit "cruel and unusual punishment"? Wasn't this attitude in Ben Franklin's and Tom Jefferson's and James Madison's genes? What, were they mutatnts?

    You mentioned that "We care about us... But terrorists in a foreign country?"

    Jose Padilla is an American citizen, living in America, and he was kidnapped off the street in Chicago on May 8 2002 and tortured until his mind turned to jelly. (One of Padilla's defense attorneys moved to vacate the trial on the grounds that Padilla had been tortured so savagely he was not competent to stand trial.)

    Foreign country?  What foreign country? Chicago?

    All the charges against Padilla fell apart. Dirty bomb charges? Thrown out. Murder? Thrown out. Terorism? Thrown out. Padilla got convicted of the most vague possible nothing charge it's possible to bring in federal court, conspiracy. It's a truism that when you charge a defendant with conspiracy, you could convict even a ham sandwich. When all the charges against a defendant initially alleged to have committed vast crimes get dismissed and the guy gets tried on the sole charge of conspiracy, this is a dead giveaway that the prosecution has no case. It's a classic red light that the defendant is being railroaded.

    So where's the evidence that Padilla was any kind of terrorist?

    People are being accused of wildly heinous crimes, as with the FBI's sensationalized revelation of the alleged vast terror plot involving C4 bombs and stinger missiles, but the reality is that these cases always fall apart because the defendants turn out to be loudmouth losers who not only aren't terrorists, they're not muslims, they're not members of Al Qaeada or any other fundamentalist group, and they never do anything but talk.

    There has not been one single conviction of one single terror suspect brought into an American courtroom since 9/11 on a single substantive charge. It's all vague garbage like "conspiracy" because the prosecution has no evidence, and these people aren't really terrorists. At least, that's what my study of these cases shows. I cannot find a single post-9/11 terror trial in which a genuine terrorist was actually convicted for a genuine violent crime.  

    It all sounds exactly like a replay of either the Dilawar travesty, where an innocent cab driver just happened to drive past the wrong army post at the wrong time (even his interrogators came to believe Dilawar was innocent), or this goofy NJ synagogue "bomb plot" which was basically nothing but an entrapment scheme cooked up by entirely an FBI agent:

    "Preying on these losers, none of whom were apparently actual Muslims, the "confidential [FBI] informant" orchestrated the acquisition of a disabled Stinger missile to shoot down military planes and cooked up a wild scheme about attacking a Jewish center in the Bronx."

    None of the defendants in the NJ synagogue bomb plot was a Muslim, or a terrorist, or connected with Al Qaeda or any other Islamic fundamentalist organization. Only one of the defendants even belonged to a mosque. They were a bunch of dopers and losers talking tough who ran into an overzealous FBI agent intent on springing the mother of all entrapments on them.

    See more here: FBI Blows It: Supposed Synagogue Bomb Plot Is Bogus

    Terrorists?  What terrorists?

    Show me one actual terrorist convicted in a court of law of a substantive charge (not crap like conspiracy, I mean an actual crime, something like murder) after 9/11. I haven't seen one yet.

    I used to think the U.S. government was just having bad luck in their post-9/11 terror trials. But a 100% failure rate to convict terror "suspects" in federal court on any substantive charges tells me something else is going on. These people aren't terrorists, any more than the people accused in the McMartin child molestation trial were child molesters.

    It's become clear that most of (if not all of) the people everyone on the streets and in the media blithely refers to as "terrorists" are very probably innocent bystanders who at the most, at the very most, talked tough and dissed American foreign policy, and they get swept up by overzealous FBI and DHS officers and hauled away to Gitmo for torture because there's absolutely not one shred of evidence that any of these suspects is an actual genuine terrorist.

    I think what's going on here is simple. American intelligence and FBI and DHS agencies can't find any terrorists. So they trump up charges against harmless bystanders, torture 'em into confessing (give me a waterboard and a month and I'd have you confessing to killing JFK, Bobby Kennedy, MLK, and Vince Foster), and then hold military tribunals because the only "evidence" is a bunch of bogus garbage confessions tortured out of these innocent bystanders.

    Show me the hard forensic evidence that any of these people who have been put on trial for terrorism, or held at Guantanamo, has ever committed any violent act. I haven't seen it. There are undoubtedly actual terrorists out there plotting to kill Americans. But so far, we haven't been able to find any of them and put them on trial.


    @MCL (5.00 / 1) (#42)
    by otherlisa on Sat May 23, 2009 at 12:42:33 PM EST
    A-freakin-men - can I give you a "10"?

    Some change, huh?


    You misspoke again (none / 0) (#44)
    by Upstart Crow on Sat May 23, 2009 at 02:19:36 PM EST
    "but PERCEIVED terrorists inside of outside of US?"

    Say what?


    Please read up on the Middle Ages (none / 0) (#43)
    by Upstart Crow on Sat May 23, 2009 at 02:04:58 PM EST
    You have a comic-book notion of the medieval world.

    Do you have any evidence (none / 0) (#58)
    by mcl on Sat May 23, 2009 at 05:19:45 PM EST
    to back up that unsubstantiated claim?

    Help me here (5.00 / 1) (#40)
    by nellre on Sat May 23, 2009 at 12:25:03 PM EST
    We're thinking of these guys like a hybrid of criminal and prisoner of war. I can't see that ever making sense.

    I'm of the opinion that terrorism is criminal.

    Prisoner of war (3.50 / 2) (#7)
    by Big Tent Democrat on Sat May 23, 2009 at 02:13:51 AM EST
    is the phrase you are forgetting.

    I find it amazing that so many seem unfamiliar with the concept.

    "war" ? (5.00 / 1) (#8)
    by Andreas on Sat May 23, 2009 at 02:21:52 AM EST
    "War on terror" is a term which was invented by a group of war criminals arround George Walker Bush and Richard Cheney.

    I also notice that you do not demand their detention.


    Exactly (5.00 / 1) (#14)
    by Jeralyn on Sat May 23, 2009 at 03:10:45 AM EST
    It's those who are trying to label these poor schlubs who got picked up in Afghanistan and sold to the Taliban, who gave them to the Americans, who then declared them enemy combatants, that don't understand.

    You have to (none / 0) (#16)
    by Wile ECoyote on Sat May 23, 2009 at 04:32:04 AM EST
    pick those out of the bad guys.

    Far as I know (none / 0) (#21)
    by gyrfalcon on Sat May 23, 2009 at 09:17:52 AM EST
    nobody is even contemplating holding onto the "poor schlubs."  They, and many who aren't even among the poor schlubs but actually lower-level garden-variety terrorist wannabes are the subject of what's reported to be fairly intense efforts by the Obama -- remember, this is Obama now, not Bush -- administration to find a place for them to be released.  For a fair number of them, to send them to their home countries is to send them to almost certain torture, imprisonment and/or execution.

    I don't even know how many in the poor schlub category are still being held, since the Bush administration has already released hundreds of people from Guantanamo and elsewhere.  It took them quite a while, but even they did finally figure out they'd been sold a bill of goods on a lot of these folks and let them go.

    The people who are actually being contemplated for some kind of indefinite detention are a small number, I've read somewhere around 20, of higher-level people.

    I haven't worked out yet myself what I think of all this, but for God's sake, wildly exaggerrating the situation isn't helpful to anybody.


    When did we declare War? (5.00 / 2) (#23)
    by Inspector Gadget on Sat May 23, 2009 at 09:49:55 AM EST
    The War on Terror is not a valid War. We never declared War in the middle east. How many US POWs are there in foreign detention centers as the result of the War on Terror?

    Prisoner of (4.50 / 4) (#9)
    by TeresaInSnow2 on Sat May 23, 2009 at 02:23:04 AM EST
    ENDLESS war, you mean.

    Calling people prisoners of an undeclared war is decidedly Orweillian.

    Using the Geneva Conventions to defend this is also Orweillian.  The spirit of the Geneva Conventions does not support indefinite detentions, even if you can parse the letter of it otherwise.

    Whatever happened to the Democrats who considered terrorism a law and order matter?  That's what it is.  You can't declare a war on terrorism.  Therefore the notion of prisoners of a war on terrorism is stupid.

    And the notion that holding some terrorists indefinitely will do anything to stop terrorism is downright silly.

    Face it, you're acting like an Obama cultist.  


    of course it's endless (none / 0) (#12)
    by BruceM on Sat May 23, 2009 at 02:48:48 AM EST
    One can prove the "War on Terror" is endless with a simple thought experiment.

    Upon our victory in a war, we have big public celebrations and ticker-tape parades in Times Square to celebrate.

    If we were to win the War on Terror and have such a celebration, would there be anti-terrorism precautions (police surveillance, bomb-sniffing dogs, cameras, etc) at the location of the event?  

    Yes, of course there would be.  Thus the "war on terror" can never be won.



    We all know that (none / 0) (#22)
    by gyrfalcon on Sat May 23, 2009 at 09:24:50 AM EST
    Obama said as much in his speech the other day.  This is exactly the problem, isn't it.  These aren't your average German soldiers drafted into a war they weren't particlarly enthusiastic about, who will happily go home to their families and raise babies when their government surrenders.

    After their government (none / 0) (#36)
    by oldpro on Sat May 23, 2009 at 12:00:49 PM EST
    surrendered, those "average German soldiers" were never the problem...but some above-average and some below-average German soldiers were - and still are - a problem. Not to mention their American cousins The German-American Bund and the American Nazi Party and the White People's Party...

    If this endless preventive detention is such a hot idea, why didn't we lock up George Lincoln Rockwell? Should we have?


    Germany surrendered (none / 0) (#37)
    by Big Tent Democrat on Sat May 23, 2009 at 12:05:59 PM EST
    The conflict was over.

    Well....the war was over. (5.00 / 1) (#41)
    by oldpro on Sat May 23, 2009 at 12:33:39 PM EST
    The 'conflict' is still going on...not unlike our Civil War...and that's a problem as well.

    Who surrenders in... (5.00 / 3) (#46)
    by Romberry on Sat May 23, 2009 at 02:48:18 PM EST
    ...the war on terror? For that matter, where's the war declaration? Who exactly are we at war against? And please don't say "Al Qaeda"...because the Al Qaeda that so many Americans believe in (some sort of well-organized, top down command and control entity) is a myth. And the Taliban? The Taliban isn't Al Qaeda and never was. The Taliban did not sanction or support the 9/11 attacks.

    So...when does this war on a verb end? Who surrenders so that we know it's over? (Maybe it's the staff that compiles the Oxford English Dictionary.)


    "A problem" is one thing (none / 0) (#45)
    by gyrfalcon on Sat May 23, 2009 at 02:37:06 PM EST
    Smart, able and active terrorists are more than "a problem."

    As Ted Kaczynski (none / 0) (#53)
    by oldpro on Sat May 23, 2009 at 04:35:50 PM EST
    as well as the Oklahoma City bombers proved.

    Obama is conceding that torture is effective. (none / 0) (#3)
    by BruceM on Sat May 23, 2009 at 01:36:13 AM EST
    Obama is officially a failure.  Forget the federal SuperMax in Florence, Colorado - our minimum security prisons contain more dangerous people than "suspected terrorists."  I'm talking about convicted terrorist proved to be guilty beyond a reasonable doubt by a jury.  And then there are the multiple murderers and of course people like Robert Hanssen (the treasonous spy) who are FAR more dangerous to America than any individual Al Queda member.  

    Here's what I really do not understand about Obama's position.  He says we can't try these suspected terrorists in our federal courts because they have been tortured.  Well, that just means no statements given while under torture can be used at trial.  So what?  Is Obama implicitly saying that The Dick Cheney is right - torture works and provides useful, reliable information?  Why would Obama want to use information gained from torture against the accused in a criminal trial?  And why would the inability to use that information be a complete roadblock to criminal prosecution in American courts?

    He needs to answer this, but first, someone needs to ask him.

    I think he is (5.00 / 8) (#5)
    by Jeralyn on Sat May 23, 2009 at 01:46:35 AM EST
    saying that the only evidence we have against some of them comes from torture, and without their own admissions made under torture, there's insufficient evidence to prove them guilty of a crime, which in turn means they won't be charged.

    Tough cookies. That's the way it's always been. When cops break the law and coerce a confession, it is excluded and can't be used against the accused. That's the exclusionary rule which has served us well for 200 years. It's a deterrent to law enforcement -- in this case, the CIA. Once they learn their tactics are for naught because the evidence they obtain can't be used in court, they'll stop doing it. (Actually, they'll lie and deny they coerced the confession but with recording and video and other improvements, they're less likely to get away with it.)

    We have always had murderers, rapists and the like go free when the only evidence against them is a coerced confession. If that's all the Government has, they should go free.

    Is there a risk to the rest of us if a murderer or rapist goes free? Yes, but so is getting on an airplane or driving your car or participating in an athletic event. Accidents happen. There's risk in everything.

    The risk that a freed detainee may harm us (which is even more remote if he is sent home) is more acceptable than the risk to our country if we compromise our principles, our justice system and our heritage.


    exactly right (none / 0) (#11)
    by BruceM on Sat May 23, 2009 at 02:45:16 AM EST
    You're exactly right, the exclusionary rule undoubtedly excludes coerced statements or statments made under duress - torture being the prime example of that.  But if those statements are the only evidence we have, and we need to try them in some fake court where the exclusionary rule doesn't apply, then Obama not only betrays fundamental justice but he concedes that torture is effective in producing reliable information (it's not).  

    I've said it before - I'd rather have ten thousand dead, charred, burnt, smoldering, bloody, American children ripped apart by the shrapnel of a terrorist bomb than to be a nation that tortures people and denies suspects the most fundamental of due process.  Make that 100,000 American babies.  And I'm talking about cute white children with blond hair and blue eyes - the kind that when they go missing, the media will cover nonstop for months straight and Nancy Grace will get a spontaneous orgasm.


    "I can't believe this." (none / 0) (#6)
    by Andreas on Sat May 23, 2009 at 02:11:24 AM EST
    Jeralyn wrote: "I can't believe people are even debating this."

    Talkleft belongs to those publications which defend (support?) the creation of a "detention regime".

    No, you got it backwards (5.00 / 3) (#13)
    by Jeralyn on Sat May 23, 2009 at 03:09:01 AM EST
    I oppose preventive detention for anyone and everyone. I deal with it every day with drug clients who are denied bond because they might be a "danger to the community." Many are locked up for 2 years or more before they go to trial. They have not been charged with a violent crime. They should get bond pending a trial at which they are convicted.

    This takes that concept one step further and wants to lock people up who haven't even been charged with a crime.

    It's like Alice in Wonderland.  "No, No said the Queen, First the Punishment, Then the Verdict."


    Not backwards (5.00 / 1) (#39)
    by Andreas on Sat May 23, 2009 at 12:17:56 PM EST
    BTD uses Talkleft to promote preemptive detentions. See "'Alleged' Combatants" by .

    But I agree with the rest of your comment.


    Constitution doesn't apply to gitmo (none / 0) (#19)
    by Xclusionary Rule 4ever on Sat May 23, 2009 at 08:11:08 AM EST
    Those guys are not being held as criminal defendants. Perhaps they should be but they're not. The rules, I hate to admit it, have changed. When all matters of national security involved country vs country, the capture and detention of enemy soldiers happened all the time and no legal reason is needed to detain them until the end of hostilities. Recalibrate this discussion. If the issue is whether these guys should have been arrested, given lawyers, a probable cause hearing, bail, and otherwise treated as criminals, fine. I agree with that; it was in fact my first thought after 9-11.  But they have not been considered criminals entitled to due process for 7-8 years now. A third category of detainees was created between criminal and POW to adapt to the new phenomenon of non-state sponsored enemy soldier. Obama is trying to define the level of due process owed to such detainees. I don't know whether a federal court has ruled on it- I know the case involving an American citizen was ruled on, but that is a different set of rules. Again, I think they are criminals not a realistic threat to national security but Obama is in a pickle: if he transferred them to the court system most of them would walk. And every op Ed page would be calling him a terrorist coddler.    

    The only way (none / 0) (#20)
    by glennmcgahee on Sat May 23, 2009 at 08:48:02 AM EST
    to determine the intentions of "Enemy Combatants" would be the enactment of THOUGHT POLICE. You know, a law enforcement entity that can read minds and predict future behaviors. Wonder which Obama donor will get the position.

    Nah, just hire nuns (none / 0) (#50)
    by Cream City on Sat May 23, 2009 at 04:02:40 PM EST
    The nuns were the thought police of my childhood -- saying that they could tell if we were sinning in thought, word, or deed.

    Think about that first one: sinning in thought.  And if caught sinning in thought, you got whomped with a metal-edge ruler.

    Just turn this country into a huge confessional -- or a huge Catholic grade school, whichever.


    crazy (1.00 / 2) (#56)
    by superjef on Sat May 23, 2009 at 05:07:02 PM EST
    i dont belive any nun beat you for thought.grow up and act like an adult

    Did you ever go to Catholic school? (5.00 / 1) (#62)
    by sj on Sun May 24, 2009 at 01:27:06 AM EST
    The nun in charge of first and second graders(whose name I remember very well) would routinely grab a child by the hair and beat their head against the blackboard if he or she was struggling with finding an answer.  Nobody wanted to be the one to have to work a problem at the blackboard.  The ruler was always out, and used if we were even looking in the "wrong" direction.  I had my hair pulled in church because I started to go down the "wrong aisle" (I was following the student in front of me).

    Thankfully, I was out of there before I reached the age of having "impure thoughts", but I wouldn't be surprised at all to have had the ruler come out.

    Back when they were cloistered and were wearing the full habit, there were some crazy @ssed nuns out there that had no business being near a child, much less in charge of a bunch of them.

    But they did teach me how to spell, capitalize and punctuate.  


    Not me -- my brother (none / 0) (#66)
    by Cream City on Mon May 25, 2009 at 12:08:14 PM EST
    got beaten.  I was a girl so was safer.

    You are an idiot, speaking about what you do not know.


    It's hard to compare the Civil War & WWII (none / 0) (#25)
    by Inspector Gadget on Sat May 23, 2009 at 09:56:39 AM EST
    to a themed action, "War on Terror".

    I don't think our current detention activities have done anything to deter others from joining in or participating in wanting very much to show us what our actions deserve in retaliation.

    The comparison is absurd beyond description (5.00 / 2) (#59)
    by mcl on Sat May 23, 2009 at 05:41:32 PM EST
    Abraham Lincoln never ordered anyone tortured. Franklin Delano Roosevelt never sat around in a meeting specifying which forms of torture should be used against German POWs.

    Lincoln never establishment a torture camp outside the United States to which Confederate irregulars would be sent, without charges and without trial, to be tortured and then tried by military commissions whose sole "evidence" consisted of statements elicited under torture.

    FDR never ordered American citizens kindapped from Chicago's O'Hare airport and held in a secret prison.

    Moreover, the Civil War and WW II cannot be compared with the current situation.

    In the Civil War, Lincoln faced the 20,000-man Confederate Army of Northern Virginia made up of half of the finest graduates of West Point and commanded by America's greatest military genius of the 19th century, Robert E. Lee. In WW II, FDR faced a million hardened Nazi troops, 60 tank divisions, 2,000 Stuka dive-bombers and 3,000 Messerschmidt Me-109 fighters, the Germany Kriegmarine, 350 U-boats sinking American shipping indiscriminately, the Imperial Japanese Navy, the Imperial Japanese Army, and 3,000 Japanese zero fighters and bombers, not to mention several hundred Japanese submarines.

    On 9/11, we faced 19 guys armed with...box cutters. 19 guys. Who hijacked 3 (three) airplanes.

    600,000 Americans died in the U.S. Civil War, and 350,000 Americans died in WW II. 3500 Americans died on 9/11.

    Your comparison between 9/11 and WW II or the Civil War insults the intelligence of any rational human being.


    Close, but not quite (none / 0) (#65)
    by Inspector Gadget on Sun May 24, 2009 at 06:38:12 PM EST
    3500 Americans died on 9/11

    I thought the total count was just under 3,000 people, and many were not Americans.


    Just Say No To [calling it] Preventive Detention (none / 0) (#51)
    by stevelaudig on Sat May 23, 2009 at 04:02:48 PM EST
    Call it conviction without evidence and punishment without crime. "It" prevents nothing and "it" is punishment for thought.

    You lose the game by accepting the frame.

    This must be terribly frustrating for actual (none / 0) (#54)
    by Honyocker on Sat May 23, 2009 at 04:56:07 PM EST
    civil libertarians who thought they were voting for another civil libertarian...only to discover they actually voted for a semi-authoritarian statist who is embracing legal principles that would make the old Stasi of East Germany proud.  I for one was never fooled.  Much like Hillary Clinton, there were certain things you never hear Barack Obama talk about on the campaign trail.  You never heard about "your individual rights" or "the constitutional liberties of individuals" or the even the word "liberty."  He was always very careful to disguise any discussion of freedom in the shroud of collectivism.  Blather about putting aside differences (such as differences over the concept of liberties) in order to pursue our common values...this is the Orwellian language of central committee members. "Preventative detention" is very much the stuff of communist and fascist regimes and of military dictatorships.  All for the common good, of course.  

    Fallacy of the excluded middle (none / 0) (#60)
    by mcl on Sat May 23, 2009 at 06:13:19 PM EST
    There's some truth to what you say, but I sense the bitterness of disappointed idealism in your claims about Obama.

    It's hard to describe Obama as a "semi-authoriarian statist."  He has explicitly talked about the need to restore habeas corpus. Is that the mark of a "semi-authoritarian statist"?

    Oabama's proposal of "preventive detention" is bizarre and outrageous and a violation of the constitution, but it stands out so clearly because it's so different from most of what Obama has done. In the previous administration, this kind of atrocity went on day in, day out.

    I vehemently disagree with Obama's unconstitutional proposal to continue the Gitmo military commissions and his suggestion of prevention detention is insane. But these are only a small fraction of the horrors and abuses and atrocities committed by the war criminals of the previous administration.

    The term "semi-authoritarion statist" applies to the reptiles who infested the previous adminsitration. These were lawless men with no respect for the constitution and no concern for individual liberties. Obama has made some bad mistakes by continuing a few of their abuses (warrantles wiretapping, the unconstitutional secret prison at Bagram airbase) but most of their other atrocities Obama has already shut down. He has ordered torture stopped. He has committed to shutting down Guantanamo Bay. He has ended extraordinary rendition. He has foresworn signing statements. He has consulted the opposition party, instead of keeping them in the dark. There is no evidence that Oabam has tried to systematically fire all U.S. attorneys who refused to prosecute Republican governors and lawmakers on bogus political charges. There is no evidence that Obama has ordered agencies like the FDA or the EPA to ignore its own laws. There is no evidence that Obama has dismantled oversight of his federal programs, or engaged in an orgy of secrecy to cloak his activities in the protection of national security.

    Is this the mark of a "semi-authoritarian statist"?

    Please remember which party's members described the opposition as "traitors" and claimed that "the only thing we need to debate is the method of execution."

    That's the mark of communist and fascist regimes and of military dictatorships.

    The people in the previous administration were monsters and crypto-fascists but that doesn't mean that Obama is an equally extreme leftist communist. Obama has proposed a few very bad ideas (preventive detention, warrantless wiretapping), but on the whole he comes across as a centrist moderate with respect for civil liberties, and the evidence for that includes  his ending the kangaroo court trials in Gitmo and shutting the place down and ending torture. Comparing him with the East German Stasi doesn't pass the straight face test, and I think you know it.  


    gitmo (none / 0) (#55)
    by superjef on Sat May 23, 2009 at 05:03:35 PM EST
        you silly geese,these dogs want to kill you and you want to save them.Obama is just as big a lair as Bush and Reed and crazy Polosi.The only difference is that the repubicans tell you what they are up to most of the the time.you might not like Chaney but he does tell you were he stands.Obama will not close gitmo,will not create jobs, and he will not pay for your heathcare or college.We have to stop goverment spending now our we will not recover from this depression.

    Clearly, you did not have nuns (none / 0) (#67)
    by Cream City on Mon May 25, 2009 at 12:12:57 PM EST
    and go to Catholic schooling.  You cannot spell.  Nor can you reason effectively.  Yet you fill space here.  

    Late comment on the "disconnect" (none / 0) (#68)
    by good grief on Tue May 26, 2009 at 12:30:46 AM EST
    >>The evidence is that not everyone held in Gitmo is a terrorist...just as not all those held in US prisons are guilty...hence the success of the Innocence Project. <<

    There is a major disconnect in the "debate" on torture and indefinite or preventive ("pre-crime") detention. These issues won't seriously engage the Constitution and rule of law until we view terrorist suspects as potentially ourselves. Until then (speaking of the general population, not individual devotees of the Constitution found on this site and elsewhere), it's as if we're running parallel alongside the law and leave it to Tweety and others in media entertainment to toss these issues around but we're largely not engaged and have little investment in the outcome as it might actually affect us. Yet the protections of the Bill of Rights and Geneva Conventions are designed for everyone including those who might be innocent. Mistaken identity/name mixups and people rounded up on false reports have already caused several detentions, some with torture. Every American, no matter how we feel about suspected extremist criminals, should assume we are the ones suspected as detention could happen to you or me at any moment by sheer mistake that can take months or years to correct -- if ever if there is no hearing.

    IANAL but this seems to me one of the core reasons why preliminary hearings exist (with protections like habeas corpus and other aspects of due process of law), and by and large because of the absence of this simple key perspective that you or I might be suddenly dragged off the street, when it comes to foreigners denoted as "terrorists" who seem safely "other" and far away from us, the issues of torture and detention are not engaging the Constitution and rule of law on the popular or media front. They are being virtually ignored -- and the problem with that is these are our own rights we are losing.

    Narius upthread said >>Don't expect too much from people. It is in our genes. We care about us, our families, and neighbors and even may be fellow citizens. But terrorists in a foreign country? << The problem here is the failure to connect these two states to see that our rights are only as protecting as they are to the "foreign terrorists" because "they" could be us and we could be "them." I don't see why this is hard to understand. A defense attorney gets it. Another commenter (Superjef), apparently not a regular here, said something revealing of an attitude at large: >>You silly geese, these dogs want to kill you and you want to save them." << Others mentioned "compassion" toward terrorists." We don't want to "save them," we want to save our Constitutional rights for ourselves. Our compassion is for those of us (not them, us) who might be innocent and thus we have rights like habeas hearings to protect us.

    Obama is allowing a dangerous vacuum in law enforcement to occur by ignoring the outright criminality of Bush-Cheney in part because he can get away with it because tortured and illegally detained "terrorists" have very few defenders in the culture at large. He is striding into the split between "us and them" to expand executive power, as Bush did. Not a few Americans since 9-11 view suspected terrorist detainees with furious hatred and some think they deserve torture. They are already convicted in our minds by being known as "terrorists." Many are indeed probably guilty -- but which ones? Without a hearing to determine reasonable cause for detention, mistaken identity cannot be proven or, on the other hand, evidence shown by the govt of criminal behavior warranting detention. By not prosecuting the known crimes of Bush-Cheney, Obama is losing those protections for us in his allowing torture, illegal warrantless wiretaps and permanent detentions to be "not-crimes" while he would round up people for "pre-crimes."  

    So, when President Obama (or any of us) speaks of prolonged detention or preventive detention, the full phrasing should be (in our minds at least) "prolonged or preventive detention of you or me." That will change the tone and content of this debate -- fast.