Once Again On Preventive Detention

Glenn Greenwald highlights a superb piece of reporting by McClatchey reporter Nancy Youssef on the injustices of the detention regime of the Bush Administration. But I was struck by this part of Greenwald's post:

It cannot be overstated how flimsy is the basis for so many accusations of "enemy combatant" status from the U.S. Government. Wakil is someone who -- as the Bush administration knew and admitted since as early as 2004 when it conducted a status review hearing -- actively opposed the Taliban and al Qaeda . . . Despite all of that, the Pentagon continued to keep him in a cage for four more years based on extremely vague associations that led them to insist that he was an "enemy combatant." . . .

This is one of the reasons why I support a preventive detention regime that complies with the Constitution and the Geneva Conventions (read here and here.) Greenwald rightfully disdains the thoughtless defenses of preventive detention after acquittal. More . . .

Mark Kleiman wrote:

All right-thinking people are shocked and horrified that the Obama Administration is thinking about keeping some suspected al-Qaeda and Taliban fighters locked up even if they aren't charged with, or are acquitted of, war crimes.

Color me wrong-thinking.

Whether someone has committed war crimes, and can be proven to have committed them beyond reasonable doubt under the rules of evidence that apply in a criminal trial, is one question. Whether he's a fighter for the other side in a war is a completely different question. Someone can be innocent of any war crime and still be an enemy fighter.

This is facile sophistry. The issue is whether you can try someone on charges that are the equivalent of a hearing on whether an individual is an enemy combatant, have that person acquitted and have the executive unilaterally decide to hold such a person anyway. Any "right thinking person" would be troubled by such an idea. Kleiman is not. He simply is not thinking at all, either right or wrong. Consider this from him:

Now it's possible that the Obama Administration has deferre[d] to the desire of the Pentagon and the CIA not to release people who could, if released, tell about the horrible things that were done to them. To the extent that's true, I disapprove. But the claim that, if we don't at once release every captive we can't convict of a war crime, the President will have the power to point at anyone and say "He's a terrorist; let's lock him up forever without a trial," is nonsense. The Bushies were claiming those powers, but the current crew isn't making any such claim.

(Emphasis supplied.) The straw and misinformation contained in that passage is astounding. Kleiman is an expert at criminal law policy, but he clearly has not been following the developments on the preventive detention issue.

The Obama Administration has been reported to be considering enacting by executive order a preventive detention regime. An Obama Administration official in testimony before Congress claimed that the Obama Administration can preventively detain a detainee it has not designated an enemy combatant AFTER acquittal on charges that would in fact support an enemy combatant designation. Kleiman seems not to know any of this.

It's fun for TNR types to pretend that people concerned about civil liberties are DFHs. Kleiman seems to like to do it too. But these are serious issues requiring serious thinking. Kleiman does not provide that here.

Speaking for me only

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    a certain type of person (5.00 / 1) (#1)
    by Turkana on Thu Jul 09, 2009 at 11:36:43 AM EST
    in the supposedly liberal community has the attitude that a dictator is okay, just so it's our dictator. now, i'm not at all saying that obama is a dictator, despite his apparent disregard for certain aspects of the constitution; but i am saying that the cognitive dissonance crowd would rationalize it and defend him if he were.

    As I have written (5.00 / 2) (#2)
    by Big Tent Democrat on Thu Jul 09, 2009 at 11:40:19 AM EST
    the issue of preventive detention is a difficult issue and any regime that is used MUST be approved by Congress and MUST involve judicial review of executive actions.

    Some disagree entirely with my view that preventive detention is ever acceptable. I have stated my reasons for disagreeing with them.

    What Kleiman does is, frankly, demonstrate his ignorance on the issues.

    Greenwald and I actually disagree on this issue. But I respect his position and try to address it substantively. In addition, the Obama Administration has taken positions on this issue that are quite frankly unacceptable. Kleiman seems not to even know what the Obama Administration positions actually are.


    Here is Kleiman again (5.00 / 1) (#3)
    by Big Tent Democrat on Thu Jul 09, 2009 at 11:42:02 AM EST
    insulting and wrong - link.

    Wow. Insulting in spades. (5.00 / 1) (#7)
    by oldpro on Thu Jul 09, 2009 at 12:09:14 PM EST
    What the Hell is going on here?  And why?

    couldn't prove it by me, (5.00 / 1) (#8)
    by cpinva on Thu Jul 09, 2009 at 12:19:30 PM EST
    Kleiman is an expert at criminal law policy

    based on his own statements.

    i think you're actually being kind here:

    This is facile sophistry.

    it really doesn't even rise to that level. using mr. kleiman's (and apparently BTD's, unless i misread him) "logic", we haven't (and never will) sufficient jail space; we know these guys are gang members (enemy fighters), we just can't convict them of any actual crime.

    "preventive detention" was used by tyrants (read: king george III) to get annoying people, who'd committed no actionable offense (or at least couldn't be proved to have) out of their hair.

    this was explicitly rejected by the authors of our constitution, in the bill of rights, and has absolutely no credible basis historically or judicially in the US. the only exception is for POW's, in time of war.

    i'm still waiting for that declaration from congress.

    The problem is that Obama's expressed (5.00 / 3) (#9)
    by Anne on Thu Jul 09, 2009 at 01:07:36 PM EST
    interest in preventive detention is not an isolated example of his apparent comfort with continuing to expand and overreach on executive power; when you add this element to all the other pieces, I don't see how one can support the policy even if Obama backed off this latest bit about holding people even if they are acquitted in a trial or commission.

    Today, I read in the NYT that

    The director of the Central Intelligence Agency, Leon E. Panetta, has told the House Intelligence Committee in closed-door testimony that the C.I.A. concealed "significant actions" from Congress from 2001 until late last month, seven Democratic committee members said.

    In a June 26 letter to Mr. Panetta discussing his testimony, Democrats said that the agency had "misled members" of Congress for eight years about the classified matters, which the letter did not disclose. "This is similar to other deceptions of which we are aware from other recent periods," said the letter, made public late Wednesday by Representative Rush D. Holt, Democrat of New Jersey, one of the signers.

    In an interview, Mr. Holt declined to reveal the nature of the C.I.A.'s alleged deceptions,. But he said, "We wouldn't be doing this over a trivial matter."

    Which is bad enough, and more proof that the legislative branch was probably never acting with enough information in hand to do the job they were charged with.

    But then I read this:

    In a related development, President Obama threatened to veto the pending Intelligence Authorization Bill if it included a provision that would allow information about covert actions to be given to the entire House and Senate Intelligence Committees, rather than the so-called Gang of Eight -- the Democratic and Republican leaders of both houses of Congress and the two Intelligence Committees.

    A White House statement released on Wednesday said the proposed expansion of briefings would undermine "a long tradition spanning decades of comity between the branches regarding intelligence matters." Democrats have complained that under President George W. Bush, entire programs were hidden from most committee members for years.

    And I have to wonder, what is it that Obama is afraid of?  Is he taking the Bush/Cheney position that the less the oversight committees know about what the intelligence agencies are doing, the better?  If this is his belief, then he is just as much of a rogue president as Bush was, which makes him just as dangerous and means there is no way in hell he should be given - or should be allowed to take - the power to indefinitely detain anyone, much less anyone who got a "trial" and had the misfortune to be acquitted so the US government could continue to keep them locked up forever and a day.  

    The president who doesn't want too many people to be in on the dealings of the agencies that the Congress is charged with overseeing cannot and should not be trusted to put together a workable detention program.

    I wonder what it will take to get the kinds of policies we wanted and needed to set this democracy back on the course it so badly deviated from in the Bush years, because I think it's pretty clear that Obama is not going to be doing that anytime soon. And the Democratic Congress? - Russ Feingold and Sheldon Whitehouse cannot do it alone.

    so fix the definitions (1.00 / 0) (#13)
    by diogenes on Thu Jul 09, 2009 at 10:26:15 PM EST
    If someone is not an enemy combatant, let them go.  But what do you say to bona fide "enemy combatants" who are not found guilty of any actual crime beyond a reasonable doubt?

    There are POWs and there are criminals (none / 0) (#4)
    by BobTinKY on Thu Jul 09, 2009 at 11:52:23 AM EST
    the procedures for dealing with each are time tested and well understood.  "Preventative detention" is not one of those procedures, unless this term is being used to describe a POW camp.  

    If this "war" is creating a situation where our well understood procedures and rules, which were utilized in far more horrific times, no longer apply, perhaps the problem is the "war."

    O/T (none / 0) (#5)
    by andgarden on Thu Jul 09, 2009 at 11:52:41 AM EST
    Sheldon Whitehouse is speaking in the Senate on Sotomayor now. He's good.

    "he's good" (none / 0) (#6)
    by BobTinKY on Thu Jul 09, 2009 at 11:56:10 AM EST
    That's because he is from RI!!

    Obama favors imprisonment even after acquittal? (none / 0) (#10)
    by BernieO on Thu Jul 09, 2009 at 03:02:15 PM EST
    Mind boggling, especially from a "constitutional law professor".

    Yeah, so far his actions have (5.00 / 1) (#12)
    by Anne on Thu Jul 09, 2009 at 03:15:45 PM EST
    managed to make many people add the quotation marks around that title; the next stage is adding "so-called," and from there we go to asterisks.

    Politicians are so predictable (none / 0) (#11)
    by BobTinKY on Thu Jul 09, 2009 at 03:15:04 PM EST
    now that he's in office I am sure the thinking is, if we do what is right, what is required by law and one of these guys blows something up, how will it look?  Bteer to just keep them where they are.

    The fact is, and I don't how anyone who has perused the 9/11 Report could maintain otherwise, the terrorist attacks on 9/11 were as much a product of Katrina-like government incompetence/inattention as of some super-human quality of Al Queda.  That should not suprise anyone who lived through the Bush Administration.  I think now that the government is once again, as terrorism was Clinton's highest priority, focused on the terrorist threat the fear of releasing those being detained with no proof borders on the irrational.