Pineapples and apples why President Obama's "prolonged detention" is wholly different than Bush's

[grantcart]

Text of speech here:
http://www.nytimes.com/2009/05/21/us/politics/21obama.text.html?pagewanted=6&_r=1&adxnnlx=1242966029-P064/pM4bJDqxoLy4I0ohQ

President Obama's "prolonged detention" is to Bush's "detention of noncombatants" in the same way that "apples" are comparable to "pineapples". Here's why:

I. Origination


Bush's intention was to vacuum the battlefield and scoop up as many fish as he could into the detention 'net'.

Obama's intention is to first not bring any new detainees to Gitmo, and secondly put all detainees through normal legal channels, if possible.


II. End Game



Bush's prolonged detention was his beginning and middle game, literally his best case scenario, there was no end game. Bush successfully prosecuted only 3 detainees, who largely plead guilty to get out of Gitmo.

Obama's prolonged detention is only a theoretical worst case scenario, and if it exists, is the result of legal contamination of the Bush administration:

We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.

III. Imperial Presidency

Bush concealed his actions, memos, rational and tried to take his actions beyond the reach of the American people or any other branch of the Government.

Obama is going to limit the power of the President to make such decisions and establish an appropriate level of oversight and check of Executive power.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

IV.Honesty in Communicating with the American People

Bush/Cheney used every cheap jingoistic trick to try and deceive the people and incite fear. From the Plame affair to allusions to a 'mushroom' cloud, their was not intellectual honesty.

Obama is using direct straight talk without evasion or deception;

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. . .

. . .But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States. .

. .Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again.

V. Inciting Fear for Partisan Purposes

Bush's political operatives used the capture of high value targets to increase the level of fear.

Obama is trying to take the use of fear as a political wedge issue out of the public square, and he has been left to do this by himself.

. . Now, as our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. These are issues that are fodder for 30-second commercials. You can almost picture the direct mail pieces that emerge from any vote on this issue -- designed to frighten the population. I get it. But if we continue to make decisions within a climate of fear, we will make more mistakes. And if we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future.

Concern for Human Rights

Bush had no concern for how these policies would be seen by experts on Human Rights and the constituencies that support Human Rights.

Obama sought them out before he finalizes his policy and discusses it directly with them, seeking their input.

http://www.huffingtonpost.com/2009/05/20/obama-huddles-with-human_n_206104.html

In an interview with the Huffington Post, Massimino (CEO of Human Rights First) detailed what she described as a "lively and detailed and serious" discussion on some of the days most vexing national security issues. Over the course of roughly an hour and fifteen minutes, Obama, along with Chief of Staff Rahm Emanuel, Attorney General Eric Holder, advisers Valerie Jarrett and David Axelrod, foreign policy hand Dennis McDonough, and counter-terrorism chief John Brennan, held court with a group of academics, as well as officials with the ACLU, Human Rights Watch, and the Center for Constitutional Rights.

Asked to attend the meeting on Tuesday afternoon, the group came prepared with what Massimino described as "some pointed pushback and questions" on a variety of topics. The president, she added, spoke for roughly fifteen minutes before opening up the forum for questions.

"It was really a back and forth discussion," said Massimino. "It was not, one side makes a presentation and the other side listens and takes notes. It was really probing."

There was much to probe. According to Massimino, Obama had "two baskets of issues he wanted to talk about: one was Guantanamo and all of the things pertaining to closing it. And the other was transparency.

Conclusion

President Obama now stands virtually alone as the only politician that wants to unconditionally bring Gitmo detainees to US soil. While Republican Senators launch a ridiculous fear campaign and Democratic Senators largely run and hide, President Obama proceeds with trademark persist ency.

He clearly intends to use existing civilian court system for some detainees, significantly transform military tribunals so that standards of due process can be used for others, release detainees that are innocent and repatriate others who are no longer a threat.

For any others that continue to engage in a state of war against the US, and who may not fit the existing system the President intends to find an answer that is consistent with our values. The US has always detained Prisoners of War who continue to demonstrate a real threat to the country. Our constitution is not an invitation to suicide. He will subject that system to oversight of congress and the judiciary.

The biggest difference between the two approaches is that Bush had everyone in the same basket while President Obama is doing everything to put no one in that same basket.

Given the extraordinary steps he has taken to close Gitmo and bring all of the detainees into regular judicial process that can be, I think it would be prudent to withhold criticism of his approach until the system he intends to use is actually defined.






Edited to add

These are the camps that were used during WWII to hold hostile combatants still in a state of war against the United States



In the United States, at the end of World War II there were 175 Branch Camps serving 511 Area Camps containing over 425,000 prisoners of war. The camps were located all over the US but were mostly in the South because of the expense of heating the barracks. Eventually, every state with the exception of Nevada, North Dakota, and Vermont had POW camps.
This list is incomplete; you can help by expanding it.
Camp Location
Camp Allegan Michigan
Bradley Field Connecticut
Camp Adair Oregon
Camp Albuquerque New Mexico
Camp Algoma Idaho
Camp Algona Iowa
Camp Aliceville Alabama
Camp Allen Norfolk, Virginia
Camp Alva Oklahoma
Camp Andrews Boston Harbor
Camp Angel Island California
Camp Ashby Virginia
Camp Ashford West Virginia
Camp Atlanta Nebraska
Camp Atterbury (3,500 Italians. Later 10,000 Germans)(www.IndianaMilitary.org) Indiana
Camp AuTrain Michigan, AuTrain
Camp Barkeley Texas
Camp Bastrop

* Kurt Richard Westphal escaped in August 1945, and was recaptured in Hamburg, Germany in 1954.

Texas
Camp Beale California
Camp Blanding Florida
Camp Bowie Texas<1>
Camp Brady Texas
Camp Breckinridge Kentucky
Camp Briner North Carolina
Camp Bullis San Antonio, Texas
Camp Butner

* Kurt Rossmeisl escaped on 4 August 1945, and surrendered in 1959.

North Carolina
Camp Campbell Kentucky
Camp Carson Colorado
Camp Chaffee Sebastian County, Arkansas
Camp Chickasha Grady County, Oklahoma
Camp Claiborne Louisiana
Camp Clarinda Iowa
Camp Clark Missouri
Camp Clinton Mississippi
Camp Como Mississippi
Camp Concordia Kansas
Camp Cooke California
Camp Croft South Carolina
Camp Crossville Tennessee
Camp Crowder Missouri
Camp David Maryland
Camp Deming

* Georg Gärtner escaped on 21 September 1945, and finally surrendered in 1985. He was the last, and had remained at large for 40 years.

New Mexico
Camp Dermott Arkansas
Camp Douglas Wyoming
Camp Edwards Massachusetts
Camp Ellis Illinois
Camp Evelyn Alger County, Michigan
Camp Fannin

* Located on the campus of the now University of Texas Health Center at Tyler.

Tyler, Texas
Camp Florence

* Largest all-new prisoner of war compound ever constructed on American soil <1>it is now used as United States Immigration and Naturalization Service (INS)

Florence, Arizona
Camp Forrest

* First attempted escape by two German POWs on 5 November 1942.

Tullahoma, Tennessee
Camp Gene Autry Ardmore Army Air Field, Oklahoma
Camp Germfask Germfask, Michigan
Camp Grant Rockford, IL
Camp Greeley <2> Greeley, Colorado
Camp Gruber near Muskogee, Oklahoma
Camp Hearne Hearne, Texas
Camp Hereford Deaf Smith County, Texas (only for Italians)<2>
Camp Hobart Oklahoma
Camp Hoffman (close to Fort Lincoln and Held over 5,000 confederate soldiers) Maryland
Camp Hood Texas
Camp Horseshoe Ranch Hickory, Oklahoma
Camp Houlton Maine
Camp Howze Texas<3>
Camp Hulen Palacios,Texas
Camp Huntsdale Pennsylvania
Camp Huntsville Texas
Camp Indianola Nebraska
Camp Jerome Arkansas
Camp Las Cruces

* Werner Paul Lueck escaped in November 1945, and was recaptured in Mexico City in 1954.

Las Cruces, New Mexico
Camp Lee Virginia
Camp Livingston Louisiana
Camp Lockett California
Camp Lordsburg

* 1942-1945: held Japanese American internees, and then German/Italian POWs.

Lordsburg, New Mexico
Camp Mackall Hoffman, North Carolina
Camp McAlester Oklahoma
Camp McCain Mississippi
Camp McCoy Wisconsin
Camp McLean Texas
Camp Mackan North Carolina
Camp Maxey Texas<4>
Camp Mexia Texas
Camp Myles Standish Massachusetts
Camp Monticello Arkansas
Camp New Cumbrland Pennsylvania
Camp Ogden Utah
Camp Oklahoma City On site of Will Rogers World Airport.
Camp Opelika Alabama
Camp Owosso Michigan, Shiawassee County
Camp Papago Park

* Germany's 'Great Escape' was from a 200 foot tunnel by 25 prisoners on 24 December 1944.

Arizona
Camp Pauls Valley Oklahoma
Camp Peary Virginia
Camp Perry Ohio
Camp Philips Kansas
Camp Pickett Virginia
Camp Pima Arizona
Camp Pine Grove Furnace / Camp Michaux Gettysburg, PA
Camp Polk Louisiana
Camp Pomona California
Camp Popolopen New York
Camp Pori Michigan, Upper Peninsula
Camp Pryor Oklahoma
Camp Raco Michigan, near Sault Ste. Marie
Camp Reynolds Pennsyslvania
Camp Jos. T. Robinson Arkansas
Camp Roswell

* 1942-1946: German POWs.

Roswell, New Mexico (14 miles SE of town)
Camp Rucker Alabama
Camp Rupert Idaho
Camp Ruston Louisiana
Camp Santa Fe New Mexico
Camp Scottsbluff Nebraska
Camp Shanks New York: Point of embarkation
Camp Sharpe Gettysburg, PA
Camp Shelby Mississippi
Camp Sibert Alabama
Camp Sidnaw Sidnaw, Michigan
Camp Somerset Maryland
Camp Stark New Hampshire
Camp Stewart Georgia
Camp Stockton California
Stringtown POW Camp Atoka, Oklahoma
Camp Sutton North Carolina
Camp Swift Bastrop, Texas
Camp Thornton Illinois
Camp Tipton Oklahoma
Camp Tishomingo Oklahoma
Camp Tonkawa

* Site of murder of Johannes Kunze by five fellow German POWs, who were subsequently tried, found guilty and hanged.

Oklahoma
Camp Tooele / POW Camp, Co.1, Tooele (original postage) Utah
Camp Trinidad

* A 150-foot electrically-lighted tunnel was discovered by authorities.

Colorado
Camp Van Dorn Mississippi
Camp Wallace Galveston County,Texas
Camp Warner Utah
Camp Washington

* Reinhold Pabel escaped on 9 September 1945, and was recaptured in Chicago in March 1953

Washington (near Peoria), Illinois
Camp Waynoka Oklahoma
Camp Wharton Wharton, Texas
Camp Wheeler Georgia
Camp White Oregon
Camp White Rock Dallas, Texas
Camp Wolters Texas
Corpus Christi Naval Air Station Corpus Christi, Texas
Edgewood Arsenal Maryland
Eglin Army Air Field Florida
Fort Benjamin Harrison Indiana
Fort Benning Georgia
Fort Bliss Texas
Fort Bragg North Carolina
Fort Campbell Kentucky
Fort Crockett Galveston, Texas
Fort Curtis Virginia
Fort Custer Michigan
Fort Devens Massachusetts
Fort Dix

* Harry Girth escaped in June 1946, and surrendered to authorities in New York City in 1953.

New Jersey
Fort Drum New York
Fort DuPont Delaware
Fort Eustis Virginia
Fort Gordon Georgia
Fort Jackson South Carolina
Fort Kearny Rhode Island
Fort Knox Kentucky
Fort Lawton (Seattle) Washington

* A riot by Negro soldiers took place over preferential treatment given to Italian & German

POW's. One Italian POW was lynched, and Leon Jaworski was the military prosecutor. The Italian and one German POW who committed suicide rather than be repatriated are buried just outside the post cemetery boundaries.
Fort Leavenworth Kansas
Fort Leonard Wood Missouri
Fort Lewis Between Olympia and Tacoma, WA
Fort McClellan Alabama
Fort Meade Maryland
Fort Niagara New York
Fort Oglethorpe Georgia
Fort Omaha Omaha, Nebraska
Fort Ord

* A 120-foot nearly completed tunnel was discovered by authorities.

California
Fort Patrick Henry Virginia
Fort Reno Oklahoma
Fort Riley Kansas
Fort Robinson Nebraska
Fort D. A. Russell Texas
Fort Sam Houston Texas
Fort Sheridan Illinois
Fort Sill Lawton, Oklahoma
Fort Sumner New Mexico
Fort F.E. Warren Wyoming
Glennan General Hospital Oklahoma
Halloran General Hospital New York
Hampton Roads Port of Embarkation Virginia
Indiantown Gap Military Reservation Pennsyslvania
Holabird Signal Depot Maryland
McCloskey General Hospital Texas
Memphis General Depot Tennessee
New Orleans Port of Embarkation Louisiana
Olmstead Field Pennsyslvania
Pine Bluff Arsenal Arkansas
Richmond ASF Depot Virginia
Tobyhanna Military Reservation Pennsyslvania
Westover Field Massachusetts
Rose Hill Rocky mountain arsenal, Colorado

[Clio the Leo]

1. Thank you. NT

[grantcart]

5. thanks Clio

[vaberella]

2. Thanks GC....

:kick: and Rec'd oh and Bookmarked.

[grantcart]

6. thanks vaberalla

I always look for your threads

[rockymountaindem]

3. Very good post

Way to juxtapose things.

[moodforaday]

28. Yeah, and way to mix things up too.

It seems to me the OP is confusing two separate issues:

1. "prolonged detention" refers to prisoners currently held in Gitmo (and Bagram, and God knows where else). Since the Cheney/MSM propaganda has done its work, it seems these people cannot just be released. After all, they are "the worst of the worst", and not even Supermax prison is safe enough to hold them.

2. "preventive detention" seems to be a different thing. As described in the NYT article yesterday and as discussed by Glenn Greenwald today, it first emerged at the WH talk between Obama and ACLU, and it apparently refers to capturing and detaining other people, who as of yet are walking free, and who the president may consider dangerous for whatever reason.

Not the same thing at all. At present, "prolonged" detention is a continuation of Bush's policy of imprisoning people without evidence. "Preventive" detention is likely worse though, since it's about doing the same to new people, possibly people who have done no illegal thing at all. I hope that's only a misunderstanding on the line between Obama and ACLU or ACLU and NYT. Just seeing the idea floated makes me physically sick.

[firedupdem]

4. Thanks grantcart! K & R! n/t

[yowzayowzayowza]

7. Error: You've already recommended that thread.

Excellent compilation.

[JeffR]

8. Fergodsakes, grantcart, will ya quit it with the reason and sources

and common sense and all that jive?

You're ruining GDP's rep as a place where any old unsubstantiated, hyperbolic, infantile whine could draw 50 recs. I say enough, sir. Enough.

[democracy1st]

9. K & R grantcart you're on a roll cheers to you getting bbq and drinks this weekend :)

[LooseWilly]

10. I think you're missing the biggest point of all.

The point, as I heard it, that most "pine"s Obama's "apple"s is the fact that he said he was looking to work with Congress to develop a means of oversight and periodic review... so that it wasn't just the President and the executive branch that controlled the detainment of these prisoners.

So now the thing to watch for will be the details that are hammered out between the executive and legislative... what is the definition of a non-state declaration of war? what is the definition of a combatant's membership in the non-state war-making apparatus? And, how will the "cessation of hostilities with a non-state aggressor" be defined?

Will a "non-state soldier" simply have to rescind allegiance to the "non-state", and declare that he or she "hereby declares a personal cessation of hostilities"? Will the "non-state entity" have to come to terms of surrender (or victory)? Will a non-state soldier be accorded the rights of the Geneva Convention? Will representatives of the non-state aggressor have to sign the Conventions first?

I have to admit, when I heard Obama frame them as prisoners of war, I found I had no logical reason to argue against that perspective... I'm now mostly just curious how the defining will go. "Leftist" as I might be, this does seem like a reasonable response to deal with those who openly admit to/take pride in being at war with the US.

It'll be interesting to see if the Congress can get their heads around the idea. From the interviews I've seen on Colbert, this seems like something too abstract and subtle for a large swath of the Congress...

[Hippo_Tron]

11. There's a lot more legal grey area than some critics are willing to admit

What Obama is dealing with is unprecedented. When he said he was shutting down with Guantanamo within a year I said to myself "That's a pretty ambitious goal given that we are trying to solve arguably the most complex legal problems of our times". I certainly don't envy the attorneys whose job it is to figure all of these questions out.

And as you said I think it is very telling that he said he wants to work with congress and the judicial branch on this. That is an admission that frankly he doesn't know all of the answers to these legal questions and that they are too big for any one person to decide. This is in stark contrast to Bush who felt it was his god given right to make whatever rules he wanted.

[Inuca]

15. It's not only about having (or nor having) all the answers

it is mainly (the way I see it at least) about involving all branches of government in an appropriate fashion, as opposed to just the executive.

[Raineyb]

16. I'm sorry but how exactly is involving the other branches of government

supposed to remove the stink of what is otherwise a system of detaining people indefinitely without having convicted them of anything?

[Hippo_Tron]

36. There's nothing unprecedented about holding non-civilians without charge

Which of these detainees are civilians and which aren't is a difficult question.

[newinnm]

48. Please Please Tell Me

Tell me one Nazi or Japanese that was held until their death without being tried because under the scenario being discussed, there is a possibility that a detainees could be held until death without a trail.


nnnm

[LooseWilly]

54. No POW has ever been held until their death without being tried... yet.

Obviously.

However, those were POWs picked up in a war waged between two states. Previously all "combatants" that were fighting without the legal "umbrella" of a state to legitimize that fighting were considered criminals.

With the rise of "terrorist" organizations, such as al Qaeda... we're presented with a new "enemy" to respond to. Since the Bush administration "swept up" a number of detainees and essentially ruined any and all evidence against them... making them un-tryable... while they are nevertheless willing to pledge allegiance to "terrorist" organizations and pledge to fight the US... the US is presented with a dilemna.

Do we continue to treat stateless combatants as criminals... and only pursue them to prosecute them after they have been linked to a crime? Or do we create a legal apparatus by which means a "war" can be declared on one-state organizations so that we can actually offensively pursue them?

Due to some political calculus... the Obama administration would appear to have come to the conclusion that the latter approach is where they want to go. Once there is some legal framework agreed to, then the detainees would officially be designated POWs (or whatever)... and presumably the framework would also include definitions of what would qualify as a "cessation of hostilities"... which presumably would be a mechnism for releasing the detainees... eventually. Maybe. I would personally also hope that there be some sort of "rehabilitation" clause, in case an organization is determined to fight for 100 years, so that 'POW's who re-cant their affiliation would be afforded the opportunity to be freed... but I don't know if the Congress, let alone the People, currently have the courage to do such a thing.

Who knows though... if the People didn't seem so liable to piss themselves at the mere use of the word "terrorist", maybe the government would be willing to continue to use the "criminal" definition for stateless combatants... and we wouldn't have indefinite 'POW' detainment in the offing...

[moodforaday]

25. "most complex legal problems of our times"?

Are you kidding? Isn't it rather the most flagrant embarrassment? What's the legal complexity of releasing people who were detained with no evidence against them, most likely tortured, and held in legal limbo for several years? Let them go and say sorry, that's about the complexity of it.

Unless you too happen to believe they are "the worst of the worst", but in that case, what other turds of Bush/Cheney propaganda do you believe?

[Hippo_Tron]

35. That is all true if you think they are civilians

But that's another legal grey area. If they are picking up arms and fighting against the United States and our military are they civilians or are they military?

[Vincardog]

41. Who said "that they were picking up arms and fighting against the United States and our military"?

[Hippo_Tron]

43. Well the ones that have been captured on the battlefield in Iraq and Afghanistan certainly are

[Wednesdays]

12. K&R

:kick:

[Orsino]

13. Yes. There's considerably more than a dime's worth of difference.

I don't think Obama's going far enough, but I think he will go farther, despite his own party's best triangulation efforts.

[Inuca]

14. Great analysis & great info

Question: will the "prolongued detention" apply only to some of those currently at Gitmo or it may apply to future prisoners as well if they fall in the "dangerous but not enough proof" category?

[Peacetrain]

17. K&R....Thank you grantcart for the info~~

[rug]

18. Two questions.

"Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States."

1) Why can they not be prosecuted?

Because the Government does not want to show its evidence alleging state security?
Because the evidence is a result of torture ("taint" is such a quaint word)?

If a person is not subject to prosecution, that person is not subject to detention.

2) Who is determining they are a clear danger to the American people?

Unless this determination is subject to review by someone other than the one who seized them, it continues to be detention by fiat. As it has been for seven years.

This plan attempts to inject qualities of fairness to the process but it does not make the process fair.

[grantcart]

19. Two Answers

1) During WWII we detained 425,000 individuals who were not subject to prosecution, so you are wrong on the inherency question. being unable to prosecute does not mean that you are inherenty unable to detain, although it raises a lot of difficult questions and tests.

Obama's statement is that there may repeat may be some whose prosecution is compromised by the contamination of their interrogations. Yet if they are still in a state of war against the US they would be subject to the same kind detention that POWs received during more conventional wars.

2) The question of who determines is the question that Obama is raising. If you read his speech he is carefully laying out that he wants to DECREASE the power of the Presidency in making such a decision and that it be subject to both Congressional and Judicial oversight.

[rug]

20. Koreamatsu is of explicitly limited applicability and was decided in a federal court,

the Supreme Court in fact. Here, an explicit determination is being made to deny detainees access to any court, let alone the Supreme Court.

While he has raised the question of who decides who is and is not an enemy of the state, he has not supplied the answer. I suppose you can consider that a careful comment.

[grantcart]

21. Your exactly right that he has not supplied any of the details yet

Which is exactly why any statement that the procedure is or is not constitutional would be premature.


It is obviously not 'inherently' unconstitutional although it will obviously face serious questions and legal tests. It is interesting to note that The ACLU and others have given this part of the speech very restrained muted criticism at this point.

[rug]

22. OK, then. To be continued.

[grantcart]

24. Exactly except this time we have a President who will lay out the facts and give his

reasons. We may disagree but atleast we now have leadership that acts like an adult without need of psychotherapy. Been a long long time since that happened.

[Raineyb]

29. WWII was an actual declared war was it not?

Not this vague amorphous "war" that apparently will never ever end that we've got going on now with this "war" on terror.

And how exactly is it an improvement to have all three branches of government declaring that someone cannot be tried but cannot be released. How exactly does this ameliorate the problem of people being held indefinitely should such a system be put into place? I'm sorry but dangerous but not prosecutable is a bullshit classification.

[grantcart]

30. So because the enemy that attacks us doesn't organize itself exactly

the same way that the Germans and the Japanese did that the same instruments that were legal and necessary then cannot be used under checks and balance now.

Is that really your argument.

By the way Al Queda has declared war on the US they are simply a trans state army rather than an army representing a specific state.

And further to your point, the Geneva Convention affords higher protection to combatants that follow certain formalities, like declaring war and wearing uniforms. Combatants that do not do so, like sabateurs and spies for example, were not protected and were executed (in some cases).

And, for the record, Japan's initiation of hostilities proceeded its declaration of war.

[Raineyb]

32. I know that. But we still had a declaration of war before entering WWII

a little detail which is missing from our current circumstances. We still have no declaration of war from our government.

And I don't give a fuck what Al Queda does. We don't even know how many of the people we're holding do or do not belong to Al Queda. What I do give a fuck about is how our country is oh so willing to ignore the rule of law then wonder why the fuck other nations can't stand our asses. The arrogance is mind numbing. What you may as well say is we're going to hold on to these people because we're the big country on the block and we can do whatever the fuck we want. There is no war here so your POW analogy does not work. What we may have at best are a bunch of criminal actors who we can no longer prosecute because we couldn't be bothered to follow our own laws and now we think that the best way to protect ourselves is to indefinitely hold on to some who we've deemed to be dangerous (without so much as a trial) but we can't actually prosecute because we're afraid that we've tortured them so bad that they may actually go out and fight us for real. That's too bad for us but if we can't prosecute we have to let them go. If that's a problem take it up with the Bush Administration for torturing people in the first place. Letting them go is not the worst thing in the world to happen. People get away with crimes all the time and they'll either go about their business or they'll get caught when they commit the next time. What we do not do is hold them forever because they may commit a crime in the future. And who determines that these people in question may commit some crime in the future? How do they do this? With a Ouija board? Incarceration is for people who have actually committed crimes. Not for people who may commit crimes (without having acted to commit a crime.) As we have no declaration of war, anything else is a line of bull that I'm not swallowing.

[Nicholas D Wolfwood]

27. As to question 1 - Obama got royally fucked on this one.

Apologies for the language, but in this case, it needed to be done. The answer is really #2 - that the evidence would get tossed out in the vast majority of cases because of either torture or a lack of Miranda rights awareness, both conducted under Bush's regime.

The problem for Obama is a very, VERY real political one that would de-rail his entire presidency if it happened -- If the detainees get a fair trial but no conviction because the evidence against them is tossed out, they are free to go. If any single one of them were to get involved in any kind of terrorist activity, it would be game over for Obama, and he damn well knows it. You could try to blame Bush all you want, but it wouldn't matter in the public or media's eyes. He'd lose re-election, all of his reforms would be DOA, and every last thing that he (and we) all pushed for would be gone in the blink of an eye. That is one hell of a huge risk to take.

[glitch]

31. The ends justify the means. nt

[Mithreal]

38. I call BS on "If any single one of them..."

After being sold into prison without any charges and regular harassment and torture, some people are going to be angry with us.

Might as well kill em all, right, by your argument, better safe than sorry.

[newinnm]

47. He didn't get fucked. He asked for the Job.

No one makes anyone run for President. He knew he would have to deal with these things and he sought it anyway. I assume he believe he has the skills to solve many of these issues or he wouldn't have asked for the job.

There are some principles that are so important that they cannot be violated. One of them is that no person should have their freedom taken away without due process that is recognized by international law. If we as democrats take the easy path of holding these people without a charge and a trial then we are no better and I mean no better that the previous administration.


-nnnm

[StrongBad]

23. Always nice to see a thoughtful, well written post. Recommended.

[Cha]

26. Wow, grant!

Thanks for all your organizing work on this. It really helps in showing that ..wonder of wonders..there is a difference between bush's policies and President Obama's.

[K Gardner]

33. Too bad Grantcart isn't employed by MSNBC. They seem to be having trouble with facts/research.

Kudos, K&R

[Lord Helmet]

34. good read that kicks the Obama=Bush meme's butt

[Demeter]

37. Obama Undermines All This Careful Rationality

by backing and filling on so many important, yea, life-threatening, issues: ending both illegal wars, prosecuting war crimes, universal health CARE, and the Wall Street bailout. Had he been as measured and reasoned on these issues, his base would be behind him. As it is, they (we) have been burned so frequently already, we are not volunteering for any more shit jobs.

[leftofthedial]

39. of course it is different from bush's.

is it still preemptive prolonged detention?

[jgraz]

40. "it would be prudent to withhold criticism"

Damn, it's getting cold in here. :scared:

[ima_sinnic]

42. but not a word about prosecuting the most dangerous ones of all: the torturers and traitors

some people "might" be dangerous and they can be locked up without due process, according to this new "plan" that is somehow suddenly needed after a thousand years of the rule of law, but those who have openly committed treason, tortured people in our name for false confessions and just to be sadistic, robbed the public treasury, outed a CIA agent--well, they get a pass.

if he's not going to prosecute the obvious ones, the ones he is OBLIGED to prosecute because he swore to uphold the Constitution and protect us from enemies "both domestic and foreign," the rest is just smoke and mirrors.

[uponit7771]

44. Very good factual post...good facts gathering, could teach sloppy MsM a thing or two.

[livefreest]

45. K&R. however, why does Obama need those military courts?

it would seem to me that either the government would be able to detain terrorists in guantanamo indefinitely if the evidence has been tainted or use the military courts.
the same would route would be taken for future detainees who can't be tried in criminal courts. I don't see why he wants both the power to hold indefinitely "terrorists" or potential terrorists, and have the use of the "kangaroo" military courts.

[newinnm]

46. Even if everything you say is true ( and I believe it is)

The factual totality of this particular "war" makes the very thing that the president is saying a disaster in the making.

Lets just say that we are able to deal with 90% of the people in Gitmo through trial, shipping back to own country etc.... What happens to the other 10%? Will there ever be a time in the world when there is no more threat of terrorism? Will there ever be a time with these detainees are going to say " you know, you are right. The US is a great country and i wont hate it any more and wont try to cause it harm". I think the honest answer is NO to both. So the reality is that this 10% will be have their freedom taken away with no charges and no trial for an undefined period of time. And its ok because a democratic president and congress said its ok. This is not like WWI, WWII or any other conflict. One cannot compare the set of facts of those wars with this "war".

If "we the people" allow this to happen then we are no better than the populace in WWII who went along with FDR's policy of putting Japanese in detainment camps. If we allow our government leaders to detain people without due process just because we happen to like the government at the time then this truly is about us being enamored with the man and not his policies.

I like Obama. I hate this policy and he needs to know it.

Charge and try these people or let them go. Thats what you and I would want if we were locked in a cell.


-nnnm

[Time for change]

52. Very well said

[Kind of Blue]

49. Thanks very much, Grantcart,

I've referred to it again and again in past day. This is why I love DU.

[Bluenorthwest]

50. So you are cool with the next President, Cheney, having these

powers? Or Palin?

Those who put personalities above principles are bags of paranoia and fear. Cowards of the New American Century. CNAC, the new PNAC.

[Time for change]

51. Those are all good points

However, the idea of incarcerating people forever, without trial, is absolutely repugnant to me. Trying to justify it is even worse, and it certainly is a serious violation of our constitution.

You note that we have always detained prisoners of war who continue to pose a threat to our country. We should add to that, "for the duration of the war". As far as I'm aware, these detainees have not been given POW status. If they haven't been given POW status, then they need to be charged with a crime and given a trial. The idea that we can indefinitely detain people because we believe/claim that they pose a threat to us takes us down the road to tyranny.

I would be willing to accept holding them on the basis that they are POWs, except for a couple of things. First, we have the propaganda that this war will last forever -- and it very well might. As long as we have the capability of declaring a perpetual state of war, the concept of POW loses much of its meaning. With regard to the specific wars in Iraq and Afghanistan, both of those wars are illegitimate. The people that we picked up "on the battlefield" were merely defending their country against invasion. They didn't ask for war. And then, there are lots, perhaps most, who were not picked up on any battlefield, and therefore cannot be considered POWs in any conventional sense.

[Phoebe Loosinhouse]

53. Congressional and Judicial oversight were inadequate for wiretapping and torture

So I don't put any great stock in that.

We have hundreds of years of history that have been based on the Rule of Law, that says a person has to be charged and tried in order to be held. The longest state of detention right now without charges is 28 days in Great Britain. You think they haven't had similar threats with the IRA, and other terrorists? They still don't feel compelled to throw out the Rule of Law and have not instituted a program of preventive or prolonged detention. Gosh, maybe the US can be the Great Leader in indefinite incarceration, and this sickening policy can be picked up by the numerous other nations. So aside from reclaiming torture for the world and making it's "judicious and limited use" all ok we can also set back world judicial systems to pre Magna Carta days.

What I find totally pathetic is that you would like to reduce this discussion to "at least Obama is better than Bush".

[skepticscott]

55. This is all written as if

Obama deserves some kind of bonus for not doing as much really shitty, illegal stuff as his predecessors. He doesn't. He should be judged as if he were starting this policy from scratch, with the principle of the rule of law being held uppermost. The bottom line, hidden beneath a lot of flowery rhetoric, is that he is still advocating the imprisonment of certain people, even American citizens, not because they have committed a crime, but because someone, or some group, somewhere, thinks they MIGHT conceivably commit a crime at some undefined time in the foreseeable future. The fact that the system he is advocating may not subject as many people to this sort of illegal, unconstitutional confinement as the system in place under Bush/Cheney doesn't buy him one inch of slack. It is still a violation of one of the most fundamental tenets of our system of laws to hold someone indefinitely without charge and without trial, and when they have not committed a criminal act. Instead of the usual presumption of innocence (even after being charged), such people would be subjected to a presumption of being guilty of some offense that has not yet been committed, and may never be committed. How exactly does someone defend themselves against that, no matter how much "oversight" is built into the process?

[Thothmes]

56. Does your list include the concentration camps that the Roosevelt

administration use to inter 120,000 american citizens?

[phleshdef]

57. Absolutely. Its a case of "Breaker" vs "Fixer".

[Vattel]

58. Important differences

and I appreciate your post. However, I agree with some of the posts above that indefinite preventive detention is a serious violation of rights and very dangerous. The Constitution does protect U.S. citizens from such a fate and non-citizens should be protected as well.

[skepticscott]

59. Actually

the Constitution does not make a distinction between citizens and non-citizens when it comes to the rights of the accused and the general rights of due process.