Feingold To Obama: Preventive Detention Is Unconstitutional
But Feingold was either holding fire, or the words he'd just heard hadn't settled in immediately. Because by the end of the week, a reservation had emerged. In a gentle, but resolute, letter to Obama dated Friday, May 22, Feingold says a key aspect of Obama's outlined detention policy is likely unconstitutional.
My primary concern...relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues....I intend to hold a hearing in the Constitution Subcommittee of the Senate Judiciary Committee in June and ask that you make a top official or officials from the Department of Justice available to testify. I recognize that your plans are not yet fully formed, but it is important to begin this discussion immediately, before you reach a final decision. I will be sending formal invitations in the coming weeks and look forward to hearing the testimony of your administration.
Obama now seeks, as Feingold describes it, a statutory basis for indefinite preventive detention, but as Glenn Greenwald reminds us, his own counsel, Greg Craig, said "It's possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law," just three months ago.
Feingold is a member of the Judiciary, Foreign Relations, and Intelligence committees, which gives him a unique perspective on issues at the nexis of civil liberties and national security. He was also an Obama supporter during the Democratic primary, which makes this emblematic of the growing rift between the President and civil libertarians. Let's see how Obama responds.
Josh
Matt
Eric
Yay Russ. Proud to have you as my Senator.
May 25, 2009 11:05 AM | Reply | Permalink
Glad that Barack is taking heat from the left as well as the right; it gives him credibility with the middle.
May 25, 2009 11:16 AM | Reply | Permalink
Obama's "possibility" morphing into "Obama now seeks".....interesting how supposed journalists in the MSM and outside of the MSM use the same technique to create controversy.
Bush and his crowd created this mess and I think we should all remember it.
Another 50 are ready to go home so the number is now slightly below 200. As these numbers are whittled down the most difficult cases where the solutions will be tricky will be left.
I'm sure that Obama will welcome Feingold's help in reaching decisions in these cases that will be as fair and as legal as possible. Solomon's wisdom will be needed to divide the baby in these cases.
May 25, 2009 12:02 PM | Reply | Permalink
I agree. I think Obama is trying to define "enemy combatant" out of existence, and counting on the Supreme Court to bail him out on the remaining few hard cases.
Maybe not a profile in political courage, but as long as we move away from 1984-style tactics of dealing with terrorists, and develop a firm legal footing to support such a move, I'm OK with Obama's rather weaselly short-term political gamesmanship.
May 25, 2009 3:01 PM | Reply | Permalink
I think Obama is making the point that the legislature is a CO-EQUAL branch of government and probably needs to start acting like it. That's been missing for some time in the Senate.
May 25, 2009 4:01 PM | Reply | Permalink
Not co-equal. Congress is supposed to be the driving force, and the Executive is supposed to execute the will of Congress.
It's entirely appropriate to throw the issue at Congress if the military commissions act doesn't cover all the needed bases.
May 25, 2009 5:10 PM | Reply | Permalink
So, here are the questions for Mr. Feingold, and the numerous others who have asserted that prolonged detention during war is patently unconstitutional:
1.) John Smith, a Yemeni citizen, battled the US in Afghanistan. He's captured and brought to an American-held base in, say, Germany. He is treated properly -- there is no torture but there are questions and feedback. What rights does John Smith get? Can he require the government to try him for shooting at our troops in exchange for being able to hold him?
2.) John Smith, a Yemeni citizen living in Yemen, trains terrorists in camps in the middle east and he advises them on how to hook up with the Afghanistan Taliban. He's captured by an American agency and is sent to an American-held base in Germany. Again, there is no torture, but there is constant questioning from Americans and our allies. What rights does John Smith have? And, more importantly, what are the bases for these rights? It's one thing to recognize that we no longer engage in torture because we honor our obligations with respect to the Geneva Conventions, the UN Convention Against Torture and other federal criminal laws.
It's another to say that every person held as a prisoner has a constitutional right to an Article III trial.
May 25, 2009 12:07 PM | Reply | Permalink
I am not the person from whom you are seeking a reply since my position is probably similar to or the same as yours, but both John Smiths are, as far as I am concerned, prisoners of war, although the second one is a bit problematic depending on where he was "captured." If he was in Afghanistan or even Pakistan, I would stick with the P.O.W. hold. If not, he is probably subject to the jurisdiction of an Article III court under some applicable criminal law.
May 25, 2009 12:37 PM | Reply | Permalink
Another difference is that John Smith could have been lawfully shot to death if he refused to surrender or was perceived to be belligerent.
Feingold's standards of constitutional rights being applied to a combat or pseudo-combat scenario seem proeposterous.
However, some cases may be more like a police action: People arrested in hotel rooms, in third countries, etc. etc.
Perhaps the best way to handle this is to let our constitutional system work, and NOT have Obama be the "decider": The executive makes proposals for how to handle these detainess, congress makes a law authorizing it, and the courts weigh in.
Some of these people are no doubt dangerous. Some have declared their allegiance to Bin Laden. Some are expert bomb makers. Some are innocent, and some were duped or just stupid. The difficulty for Obama is we need to find a legal fraemwork to resolve these cases, and yet there is little margin of error.
If anyone has some easy answers, feel free to contribute. (Just letting obviously guilty people free to kill again is not a workable solution!)
May 25, 2009 1:01 PM | Reply | Permalink
Preposterous? Not at all. Those rights don't kick in for someone shooting at you. They kick in the moment you are in the custody of the United States Government.
They're not about your behavior... they're about the behavior of the US Gov.
May 25, 2009 1:32 PM | Reply | Permalink
In a combat situation, those rights DO NOT kick in ever.
POWs are not criminals.
They are forbidden to be treated like criminal,s unless they have committed crimes.
The rights of criminals are not the only ones at stake here!
May 25, 2009 2:28 PM | Reply | Permalink
Let's be clear here: I'm not saying POWs should be treated as criminals if they're not criminals. I'm saying that Constitutional protections aren't about the person protected, but about the body that person is being protected from, to wit: The Federal Government of the United States.
That's what every Constitutional protection is about. That's what the entire Bill of Rights is about: limiting the ability of the USG to abuse and harass those under its aegis.
Once an individual is a POW, they are no longer in a 'combat situation', and all of the protections accorded to anyone in federal custody apply, ie: prohibitions against cruel and unusual treatment, unlawful search, etc etc. No, they are not criminals and should not be treated as criminals. That doesn't mean that the baseline Constitutional protections don't apply to them, though. If anything, it means that protections and treaty obligations far and above just those protections apply.
But the protections afforded by the US Constitution always apply to anyone in the custody of the United States Government, because those protections are prohibitions on the behavior of the United States Government. They apply most frequently to citizens because citizens spend most of their time (in principle) in territory administered by, and thus under the auspices of, the United States Government. Anyone else who is then taken into USG custody, regardless of citizenship, would have to be afforded those same protections, because the protections are intended as limitations on the actions of the USG.
May 25, 2009 11:03 PM | Reply | Permalink
But there were no constitutional protections for POWs in , say, WWII. People were held without "charge". I'm saying that war is a different case than criminal law. Prisoners are not under arrest and not convicted of anything, since war itself is not illegal.
May 26, 2009 12:47 PM | Reply | Permalink
And I'm agreeing with you that it's not an issue of criminal detainment or individuals 'under arrest'. However, there most certainly were Constitutional protections available to WWII POWs, even if they were generally not thought of in those terms, but simply in terms of our normal societal mores.
For example: POWs weren't stripped of their freedom of religious practice. Nor were they stripped of their protections under the eighth amendment, which reads in its entirety:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Note that nothing in the text of the amendment indicates a limitation to criminal imprisonment. Obviously, in the case of bail, such would normally only be ordered during criminal proceedings, but that doesn't mean that the prohibition against cruel and unusual punishment is limited to only those being held for criminal offenses.
Without such express limitation of the Eighth, the very idea of involuntary coercion, being rooted in cruelty, is unconstitutional.
For that matter, the relevant parts of the Fifth can be read as:
"No person shall be ... deprived of life, liberty, or property, without due process of law ..."
Thus, some due process of law must be in evidence to detain anyone for an extended period of time. In the case of POWs, the 'due process of law' is that they are legitimate combatants who have been humanely retired from the field of battle in a declared (rendering the legitimate military actions of an identifiable military force legal) war. They were identified as such, and then are held as such, until such time as it is possible to repatriate them to their home country in a manner that will not inevitably predicate their return to the battlefield (as such would be cruel, and thus, illegal).
May 26, 2009 3:18 PM | Reply | Permalink
1.) John Smith, a Yemeni citizen, battled the US in Afghanistan.
He is a prisoner of war. He is entitled to the protections and rights granted by the Geneva Conventions, and more, he himself is obligated and held to the standards those Conventions lay out for Asymmetric Warfare.
Example: When he battled the US in Afghanistan, did he wear/clearly display a uniform, badge, token, or other identifying feature to signify his membership in an organized military force? Were his targets limited to legitimate military targets?
If not, then not only is he a POW, he's a POW who should be charged with war crimes.
2.) John Smith, a Yemeni citizen living in Yemen, trains terrorists
He's a criminal. Terrorism, and the preparations for terrorism, is fundamentally a Conspiracy to commit assault, murder, arson, etc etc, dependant upon the plan involved. In the case of general terrorist-training, the range of possible charges would be as broad as the prosecutor can imagine: the conspiracy is to commit all of them as some point.
As such, he should be incarcerated until such time as the appropriate legal body, which need not be the US legal system, can old him accountable. Many other nations have laws authorizing their law enforcement and prosecutorial agencies to pursue extraterritorial claims against terrorists and accomplices. If he is held by a US agency in a US-controlled facility, then he should be held in at minimum the same baseline conditions required for all involuntary wards of the state - those used by the federal prison system. (Note that most of our prison facilities are well above those minimum conditions.)
May 25, 2009 1:23 PM | Reply | Permalink
If he didn't commit the crimes in the US -- or against persons in the US-- my hunch is that he needs to be charged for engaging in criminal acts in his home country. So, it would not seem to be too much of a reach for a spy agency such as the CIA to capture a criminal in Yemen and hold him until the agency has assurances that the individual will be charged with conspiracy to commit murder and/or other crimes.
If this is the case, it doesn't seem to be too difficult to see us holding guys until the actions are taken by the ally.
May 25, 2009 1:48 PM | Reply | Permalink
Not so. Spain, for example, has laws allowing the prosecution of terrorists under conspiracy laws regardless of where they're operating, with the justification that they are conspiring against indiscriminate targets, and that established patterns of terrorist behavior include targetting Spaniards. Thus, continued terror conspiracies are operationally considered to be conspiring against Spaniards as part of their larger target-list.
As well, if his conspiracy is against American citizens, or conspiring to commit acts within the US, then his criminal liability is to the United States.
May 25, 2009 2:19 PM | Reply | Permalink
Your solution seems reasonable.
May 25, 2009 2:29 PM | Reply | Permalink
In our NEW system of government the Constitution is "available" but not really necessary. The leaders we have chosen these past few election cycles have decided our founders were really not that bright and did not realize just how inconvenient this document could be when attempting to rule this nation... and the rest of the world.
We have now concluded that since we have unlimited power and no USSR or other nation to restrain us... we no longer need to be concerned over treaties, laws, viewpoints, etc..
If worse comes to worse, our leaders can just vote to withhold monies to various countries... or attack them.
Of course for now, a few pesky little commoners are able to make some ripples, but the folks in Washington are learning quickly that they no longer need to worry about petty little nobodies... IMHO
May 25, 2009 12:14 PM | Reply | Permalink
We are well down the slippery slope now. It is easy to stop the slide when near the top, but extremely difficult the further you slide down.
That is Feingold's letter in simplified form. I find it hard to understand how people can refuse to criticize Obama when he is making a terrible mistake. And, proceeding any further with this concept of violating the Geneva accords, the Constitution, and our national self image, is most certainly a mistake, and a terrible one at that.
My feeling is that this generation, unlike the WWII generation, is too cowardly to accept the extremely tiny risk to our safety that following our laws and constitution would entail. We should be ashamed.
May 25, 2009 12:35 PM | Reply | Permalink
unlike the WWII generation?
Captured German saboteurs captured in the US were summarily executed.
There was official censorship.
And civilians were slaughtered in mass bombing of cities.
May 25, 2009 12:51 PM | Reply | Permalink
http://news.minnesota.publicradio.org/features/200210/02_druleyl_germanpow-m/
"During World War II about 400,000 prisoners of war were held on American soil. Approximately 10,000 German POWs lived and worked in Minnesota, Iowa and the Dakotas. ...
Christine Schunart was just an infant when her father went to war for Germany. He was captured after four years of fighting and shipped to Algona, Iowa. He ended up in a prisoner of war camp in Fairmont in southern Minnesota. He worked alongside American factory workers canning corn and peas.
Schunart and her family are visiting the history museum in Albert Lea. They met with war veterans, historians and other people interested in the era.
"It's very moving for us to be at these places where we never really knew about." Schunart's daughter Sonja translates for her mother.
"When he did eventually come home his daughters were 6-, 8- and 10-years-old," Schunart explains. "When he did come home he was kind of a stranger to his family. On the other hand they were very proud to have a father. When asked at school what their fathers do many children had to say my father died in action. And they were proud to raise their hands and say we have a father and he's at home." ....
She learned that life here was actually easier than Germany. Food was plentiful and the climate was similar to home. She says he liked how he was treated.
"My grandfather, her father wasn't treated as a number, he was treated as a person," Sonja Schunart says. "He was really an individual being."....
May 25, 2009 1:04 PM | Reply | Permalink
And the 8 saboteurs who were executed?
How about Japanese American internment?
It is a joke to compare the WWII human rights situation to today.
May 25, 2009 2:26 PM | Reply | Permalink
And it's a joke to compare the Nazi threat to the terrorist threat. The only thing that's really changed is that since the world is much more globalized than it once was, we no longer have the benefit of as much physical isolation as we once did, i.e. we're going to have to start conducting our foreign affairs as others do realizing that actions have reactions and may endanger our own civilian population.
May 25, 2009 3:40 PM | Reply | Permalink
"And it's a joke to compare the Nazi threat to the terrorist threat."
You are right. Al Qaeda is mostly about spectacle. I don't think we need to be alarmist. Yet terrorism presents a unique case which doesn't fit well in current US and int'l law. I think it is better to set up legal structure to handle it now, rather than continue ad hoc means and pretend it is merely a crime or pretend it is full-blown war between uniformed armies. It's something different.
May 26, 2009 12:53 PM | Reply | Permalink
What mistake is Obama making?
May 25, 2009 12:52 PM | Reply | Permalink
codifying pre-crime, sorry preventive detention.
May 25, 2009 1:00 PM | Reply | Permalink
I was unaware that Obama had submitted anything to Congress....do tell.
May 25, 2009 1:04 PM | Reply | Permalink
i guess you missed the speech.
May 25, 2009 1:23 PM | Reply | Permalink
I am specifically asking you to discuss Category 5 detainees. And, no, there have been no changes submitted to Congress by Obama.
Obama expected us to be adults and discuss what should occur with Category 5 detainees.
Deny danger from them? Ridicule anyone who thinks their release could result in a bad outcome for members of our military or the civilian population here? Deny the power of the myth--think Iwo Jima here?
And, really, I think the slippery slope and the "do this and the feds will be spying on me in the bathroom" are a bit overdone and simply are said to squelch any discussion.
May 25, 2009 1:42 PM | Reply | Permalink
you're right, i was being glib. but the fact that you can refer to "category 5 detainees" shows that a regime is in the making, which is what prompted feingold's concerns in the first place.
May 25, 2009 1:48 PM | Reply | Permalink
And it's the reason I said that I was sure that Obama would welcome his input.
This is not easy stuff.
May 25, 2009 1:57 PM | Reply | Permalink
And it's the reason I said that I was sure that Obama would welcome his input.
This is not easy stuff.
May 25, 2009 1:57 PM | Reply | Permalink
well, as is painfully obvious, IANAL, but here's one:
If incarcerating people with no charges and no trial indefinitely -- while making clear that the imprisonment will likely last decades -- isn't unconstitutional, then it's hard to imagine what would be.
there are those who say our constitution isn't built for the modern world, that we should abandon the rule of law cause we're scared. i'm not one of those people.
May 25, 2009 2:10 PM | Reply | Permalink
Fair enough.
What exactly do we do with these folks Bush kidnapped and tossed into Gitmo who are also dangerous and whose country of origin don't want them back? Declare them very reluctant immigrants, give them a green card, and drop them off on a street in Anywhere, USA, because no one else wants them?
May 25, 2009 2:22 PM | Reply | Permalink
do we know they're dangerous? how do we know? aren't you just replacing a judge or jury's decision with the president's? what was that whole revolutionary war thing all about, anyway?
May 25, 2009 2:50 PM | Reply | Permalink
Make my point for me. We don't have the details. None of us.
So I'll hold off on the drama I'm quite capable of until I know the details.
May 25, 2009 2:59 PM | Reply | Permalink
Your question about what to do with known dangerous people is a difficult one, but our American laws, traditions, and constitution all require that we acknowledge that we were wrong in how we determined that they are dangerous. Just as many a criminal walks away when it is learned that the evidence against him is too tainted to be admissible, we need to allow those "terrorists" we violated our laws by torturing, by letting them free.
But, just as the criminals who get to walk after the police screw up the evidence aginst them are then monitored by the police continuously, these suspect terrorists would have to be monitored by the FBI at all times. That would cost some money, but it should. And, that is how we can release them without worrying that they will kill us all as we sleep.
Simple solutions usually exist for even complicated problems if you are willing to accept reality.
May 25, 2009 5:40 PM | Reply | Permalink
I think this same solution has been done in Great Britain with restricted movements and constant monitoring. I don't have much of a problem with this.
May 25, 2009 9:15 PM | Reply | Permalink
But, just as the criminals who get to walk after the police screw up the evidence aginst them are then monitored by the police continuously
and then sue successfully for harassment.
May 26, 2009 12:32 AM | Reply | Permalink
I can't remember that ever happening. And, with a non-citizen, who the FBI could show was an unconvicted terrorist, it wouldn't happen successfully there either.
May 26, 2009 1:10 AM | Reply | Permalink
You can't remember it happening because the police agencies around the country are very careful to avoid having such round-the-clock awareness of suspects who aren't convicted. Usually, when zealous officers do try to keep tabs on the 'ones who got away', lawyers get involved and they get told to back off. My uncle, a 20-year veteran of the force in NJ, often grumbles about such things.
May 26, 2009 3:02 PM | Reply | Permalink
I don't know so much about being dangerous. How about this case...?
http://open.salon.com/blog/norwonk/2009/05/18/take_a_walk_in_lakhdar_boumedienes_shoes
Isn't what he experienced indefinite detention without trial? It was indefinite until he was released.
May 26, 2009 6:42 AM | Reply | Permalink
Remember that Bush made this mess by bringing thee folks--under all sorts of different scenarios--to Gitmo and made it an American responsibility. Also note that this issue did progress through the American judicial system and those decisions formed the basis for release. Also note that more folks have not been added to Gitmo since the 2006 or so timeframe.
Obama has been open about his plans and open about the struggle we may have in dealing with ANY who are left at the end of the review process who are too dangerous to release willy-nilly. There may be none. We just do not know yet.
May 26, 2009 11:11 AM | Reply | Permalink
Yes, and I've often thought that the founders in the fledgling 13 states were comparatively easy prey to the British and French but still had the wisdom and the courage to adopt firm principles enshrining the rule of law.
Here we are the world's only superpower we so love to tell ourselves and with a military the size of the next 10 or more combined and we have to be the most paranoid people on earth considering our relative power in comparison to that of any potential foe. The Europeans laugh at us. The Canadians chuckle that we have war and they have healthcare.
Both parties compete to make sure that we never ever feel secure. I mean how could they campaign to make us more secure if we were already secure?
We're entitled never to be injured by a middle eastern suicide bomber but if your neighbor's kid wants to pick up his family's arsenal and use it on the local middle school, well execute the kid but don't take away his daddy's guns.
We're a nation of looney tunes.
May 25, 2009 12:58 PM | Reply | Permalink
If only it were so simple.
People on one side of the issue want to treat it as a purely military operation and keep it all out of civilian criminal courts.
People on the other side want to treat it as a purely criminal police matter, even though people picked up on a battlefield are not read miranda rights. It's a different standard in combat -- for instance, the authorization to shoot to kill without probably cause.
Does Feingold essentially say that because Al Qaeda is not a state, a shooting war against them is not a "war"?
I think what we have here is something that is between the traditional notion of war and crime. The geneva convetions don't adequately address it. Bush and Rumsfeld basically made ad hoq improvisations -- "unlawful combatant" -- to deal with it.
But we shouldn't improvise and use extralegal methods. And I think we shouldn't and can't define all of these cases as criminal matters. Why can't people who don't have enough evidence for a criminal trial, but do have enough evidence to prove they are fighters, be classified as POWs and held as such?
May 25, 2009 12:48 PM | Reply | Permalink
frog, treating combatants as POWs is a little more problematic when said detainees were picked up while driving a cab in Islamabad. but if the whole world is our battlefield, hell, then anyone can be disappeared, you and me included.
May 25, 2009 12:52 PM | Reply | Permalink
Jump the gun much? Obama released 50 more folks, although perhaps their country of origin and/or where they were picked up will have to agree to take them. What do you suggest if either of these countries refuse to take the person? What do you suggest if both of these countries will imprison the person in far worse conditions than Gitmo and with a heck of a lot more violations of their rights?
What do we do with these folks? Obama certainly had nothing to do with creating the mess.
Have ideas for specifics or just generalizations to soothe your soul?
May 25, 2009 1:10 PM | Reply | Permalink
have a method to distinguish the innocent from the guilty or are you just willing to take the president's word?
May 25, 2009 1:21 PM | Reply | Permalink
Generalizations are easy, my friend. I indulge in them too. :)
I don't have a problem when Obama decides 50 people can be released without any further action--as he did last week.
I don't have a problem if folks are scheduled for federal trial.
The military tribunals/commissions that Bush put in place were declared unconstitutional in 2006. I would expect Obama to set up constitutionally sound ones and I would also expect challenges on the legality of them. Do you prefer a different method of determining their legality?
This leaves us with some details. What if the country the person is to be released violates rights and may do the same with this individual? What if mental illness has developed for the person? What if the country of origin refuses to accept the person?
And I really want to know the details of the person(s) being held with out a hearing or trial. Although I like the idea of an annual judicial review, I'm not convinced this is the best method. I also expect judicial review.
Look, Obama didn't ask for this GD mess and neither did I. But it does have to be cleaned up. What is your plan?
May 25, 2009 1:52 PM | Reply | Permalink
Problematic? Absolutely.
All we have are problems. I have yet to hear easy solutions from anyone.
One thing I have heard from critics in Britain is that the US should create a proper terrorism law, which would provide the right legal framework for handling these cases.
What we have hear is a problem of metaphor: People reducing terrorism to purely criminal activity, and others reducing it to purely a war activity. I think it is neither, or has a blend of both on a continuum.
What we could do is classifify people picked up in battle situations as POWs, possibly try them for war crimes if applicable, but otherwise hold them as POWs until Al Qaeda is either destroyed or quits. People picked up in non-combat situations are treated as criminal conspirators, like mobsters, and tried with racketeering laws and other applicable laws.
May 25, 2009 1:31 PM | Reply | Permalink
that's pretty sensible.
May 25, 2009 1:45 PM | Reply | Permalink
You are forgetting the third side who wants to treat them as non-persons outside any legal system, military or civilian.
May 25, 2009 4:42 PM | Reply | Permalink
And then there's that.
May 26, 2009 12:54 PM | Reply | Permalink
ah, poor deluded feingold, with his Constitution this and rule of law that, with his we're-not-the-USSR this and due process that, with his american exceptionalism and habeas whatsis and land-of-the-free BS. on memorial day we should remember all the brave americans who died so we can disappear people. it's what separates us from other countries (except like, iran or north korea)
May 25, 2009 12:49 PM | Reply | Permalink
Generalizations are easy to right. The details of each person's case are a bit more tricky, I would think.
What is your solution to Gitmo's inhabitants?
May 25, 2009 1:03 PM | Reply | Permalink
try them.
May 25, 2009 1:05 PM | Reply | Permalink
or torture and summarily execute them, i can't decide. (there's a little stalin in everyone!)
May 25, 2009 1:07 PM | Reply | Permalink
or just do whatever the president says. hell, he was elected, which means our standing as a champion of human rights is unassailable, right? same with warrantless wiretapping. there is no "right" to "privacy" so we should stop pretending that there is.
May 25, 2009 1:09 PM | Reply | Permalink
There are 50 Obama has selected to be returned? Should we try these folks or not?
May 25, 2009 1:12 PM | Reply | Permalink
well, if there isn't enough evidence for an indictment, let alone a conviction, letting them go seems sensible (in a 12th-through-20th century way, of course).
May 25, 2009 1:18 PM | Reply | Permalink
= ie. treat combatants as criminals
May 25, 2009 2:32 PM | Reply | Permalink
and let's also not lionize those who only had to fight nazis and face down the soviet union. those people didn't know a real threat like the bravest generation (that's what i call the cheneys of the world should be called, since they faced the only truly existential threat this country has ever known).
it was easy for those p*ssies (there, i've said it -- don't pretend you weren't thinking it, too) to adhere to their precious constituion cause they didn't have millions of osamas about to kill us all like we have now.
May 25, 2009 12:58 PM | Reply | Permalink
FWIW, my dad had a small role in the invasion of normandy. i used to call him on veteran's day and thank him for protecting me from the huns. with the wisdom of age, now i can see what a small-stakes "war" that was. were dad still among the living, i would call him and say, "gee, thanks a lot, we really were in danger back then." dripping with sarcasm, of course.
May 25, 2009 1:04 PM | Reply | Permalink
I think there is definitely a misrepresentation of what is going on. You should read Jane Meyer's book on torture, as I believe she spells out how some of these people were captured.
In some instances, those captured were very much criminal warriors - engaging in off-the-battlefield war. Think about it this way: in the Vietnam war, the VCs were often supported by Soviets and other communist sympathizers. If the US caught some of these sympathizers -- while doing their job in the Soviet Union, for example, would they be entitled to an Article III jury trial? OF course not. I don't see this as being that much different.
I oppose torture in every sense, but I don't think these guys all need/deserve to have access to our civilian and criminal courts in exchange for our treating them as POWs. There are, after all, wars going on in Iraq and in Afghanistan and regardless of how we got into those conflicts, we have people all over the world financially and militarily supporting the Taliban and various Iraqi segments. When we catch these supporters, why can we not treat them as POWs? It would be nice to hear from someone that knows the details of these treaties. . . .
May 25, 2009 1:30 PM | Reply | Permalink
No offense to Mr. Feingold, that may be true under Article II, but already two courts have ruled that Obama does have that power to indefinitely detain under the authorization to use military force in Afghanistan. I'm not convinced yet that preventive detention isn't included in that.
May 25, 2009 1:49 PM | Reply | Permalink
Can anyone tell me why we can't treat some of these captives simply as POWs???
Bush avoided doing so for 7 years. I never understood why. We seem to be avoiding what would seem to be a good solution at least for people captured on a battlefield.
May 25, 2009 2:35 PM | Reply | Permalink
I think we could have. In fact, Lehnert who built the prison at Gitmo in early 2002 was apparently a "good guy" type who did so.
I don't know why good leadership can't be put in place at Gitmo to turn it into a symbol of positive change.
Abu Ghraib was closed. Well, whatever, does that mean that we simply close down and run away from tarnish, or can we do the hard work to improve an image?
May 25, 2009 5:20 PM | Reply | Permalink
The reason Bush wouldn't treat the captives as POWs was because the Geneva Conventions were too specific about not torturing them, thus closing Bush's one opportunity to "prove" that Osama piloted an airplane into the World Trade Center. Yes, that is certainly snarky, but it is also absolutely true until the last phrase.
A second reason for not calling the POWs is that they aren't POWs. They are civilians who were picked up, often on the word of one of their personal enemies, as "terrorists". International law would require that they be treated as criminals by the country where we picked them up, as we were helping that country resist their oppressors.
Of course, some countries, many, in fact, would treat those captives worse than we did at GITMO. But, that is not our country doing it. Furthermore, those who cannot be sent "home" for various reasons, like the Chinese dissidents captured in the Middle East, are now our responsibility. We should exercise that responsibility, uh..responsibly.
May 25, 2009 5:52 PM | Reply | Permalink
There is a problem with calling it a "war". Wars are fought between countries, hostilities are declared, at the end there is an end. One side or the other wins or a truce is declared. The war on terror is not a war as much as the war of drugs is not a war on actual drugs. Where is the battlefield? The whole world! When will hostilities end? Never. Who are the terrorists? Don't know. Where is Osama Bin Laden and is he ready for a truce? Silence.
One of the requirements for indefinite detentions was that they had sworn allegiance to Osama bin Laden. That is all they need to have done. I swear allegiance to... What standard of criminality is that and how would it apply in reverse. The Taliban capture an American soldier. You swore allegiance to the flag and the American president...? You are a danger to our country - especially since you came here with a gun... you get indefinite detention?! Same standard in reverse not working for you means that the standard is faulty.
Before you ask the question of what to do with the "combatant" ask yourself? What are we doing here? Do we belong here? One man's terrorist is another man's freedom fighter. Can you blame these people for shooting at your soldiers if your government drops bombs on civilians and children willy nilly? If your government ever did that where I live I would also be shooting back!
May 26, 2009 6:56 AM | Reply | Permalink
"One man's terrorist is another man's freedom fighter. "
Uh, no.
War is not illegal, but massacring civilians is. If Taliban wants to shoot at US soldiers, it is guerilla warfare and not illegal. If Al Qaeda wants to plant bombs on city buses, that is terrorism, a crime, and if we consider terrorism a kind of warfare, it is also a war crime.
May 26, 2009 12:59 PM | Reply | Permalink
Good for Feingold! Keep it up Russ!
May 25, 2009 4:19 PM | Reply | Permalink
Feingold and Greenwald are both dead wrong. Preventive detention already exists in American law and for American citizens, no less. There are 1) people detained indefinitely b/c they might commit future sex crimes; 2) mentally ill people confined indefinitely b/c they may harm other people or themselves; and 3) and criminal suspects in federal courts (and in many state courts) are regularly detained pre-trial b/c they might commit crimes if released to bail.
I don't favor any preventive detention, but I must say that it seems palpably more suited to foreign jihadists committed to killing Americans but who can't be tried b/c Bush-Cheney wrecked the criminal cases than it does for American citizens.
People should get their facts straight.
May 26, 2009 8:31 AM | Reply | Permalink
none of your examples of confinement fit the definition of 'detention' (indefinite, preventative, or otherwise) as it pertains here. detention here very specifically refers to being held without charge or opportunity to have accusations impartially adjudicated.
May 26, 2009 10:10 AM | Reply | Permalink
If we classify them as combatants rather than criminals, we can hold them until the end of the conflict.
May 26, 2009 1:09 PM | Reply | Permalink
Perhaps it would be best to call this policy "preventative imprisonment". "Detention" is a weak word, usually referring to after-school study hall as punishment.
May 26, 2009 11:47 AM | Reply | Permalink