[Marxism] Obama "first president to introduce a preventive-detention law" (More Glenn Greenwald in Salon)

["Fred Feldman" <ffeldman@xxxxxxxxxxxxxxxx>]

www.salon.com/opinion/greenwald/2009/05/22/preventive_detention/print.html
Facts and myths about Obama's preventive detention proposal
Is a system of indefinite detention with no charges a standard or radical
idea? 
Glenn Greenwald

May. 22, 2009 | 

[Updated below - Update II (Interview with ACLU) - Update III - Update IV -
Update V - Update VI]

In the wake of Obama's speech yesterday, there are vast numbers of new
converts who now support indefinite "preventive detention."  It thus seems
constructive to have as dispassionate and fact-based discussion as possible
of the implications of "preventive detention" and Obama's related detention
proposals (military commissions).  I'll have a podcast discussion on this
topic a little bit later today with the ACLU's Ben Wizner, which I'll add
below, but until then, here are some facts and other points worth noting:

(1) What does "preventive detention" allow?

It's important to be clear about what "preventive detention" authorizes.  It
does not merely allow the U.S. Government to imprison people alleged to have
committed Terrorist acts yet who are unable to be convicted in a civilian
court proceeding.  That class is merely a subset, perhaps a small subset, of
who the Government can detain.  Far more significant, "preventive detention"
allows indefinite imprisonment not based on proven crimes or past violations
of law, but of those deemed generally "dangerous" by the Government for
various reasons (such as, as Obama put it yesterday, they "expressed their
allegiance to Osama bin Laden" or "otherwise made it clear that they want to
kill Americans").  That's what "preventive" means:  imprisoning people
because the Government claims they are likely to engage in violent acts in
the future because they are alleged to be "combatants." 

Once known, the details of the proposal could -- and likely will -- make
this even more extreme by extending the "preventive detention" power beyond
a handful of Guantanamo detainees to anyone, anywhere in the world, alleged
to be a "combatant."  After all, once you accept the rationale on which this
proposal is based -- namely, that the U.S. Government must, in order to keep
us safe, preventively detain "dangerous" people even when they can't prove
they violated any laws -- there's no coherent reason whatsoever to limit
that power to people already at Guantanamo, as opposed to indefinitely
imprisoning with no trials all allegedly "dangerous" combatants, whether
located in Pakistan, Thailand, Indonesia, Western countries and even the
U.S.

(2)  Are defenders of Obama's proposals being consistent?

During the Bush years, it was common for Democrats to try to convince
conservatives to oppose Bush's executive power expansions by asking them:
"Do you really want these powers to be exercised by Hillary Clinton or some
liberal President?"

Following that logic, for any Democrat/progressive/liberal/Obama supporter
who wants to defend Obama's proposal of "preventive detention," shouldn't
you first ask yourself three simple questions: (a) what would I have said if
George Bush and Dick Cheney advocated a law vesting them with the power to
preventively imprison people indefinitely and with no charges?;

(b) when Bush and Cheney did preventively imprison large numbers of people,
was I in favor of that or did I oppose it, and when right-wing groups such
as Heritage Foundation were alone in urging a preventive detention law in
2004, did I support them?; and

(c) even if I'm comfortable with Obama having this new power because I trust
him not to abuse it, am I comfortable with future Presidents -- including
Republicans -- having the power of indefinite "preventive detention"?

(3)  Questions for defenders of Obama's proposal:

There are many claims being made by defenders of Obama's proposals which
seem quite contradictory and/or without any apparent basis, and I've been
searching for a defender of those proposals to address these questions:

Bush supporters have long claimed -- and many Obama supporters are now
insisting as well -- that there are hard-core terrorists who cannot be
convicted in our civilian courts.  For anyone making that claim, what is the
basis for believing that?  In the Bush era, the Government has repeatedly
been able to convict alleged Al Qaeda and Taliban members in civilian
courts, including several (Ali al-Marri, Jose Padilla, John Walker Lindh)
who were tortured and others (Zacharais Moussaoui, Padilla) where evidence
against them was obtained by extreme coercion.  What convinced you to
believe that genuine terrorists can't be convicted in our justice system?

For those asserting that there are dangerous people who have not yet been
given any trial and who Obama can't possibly release, how do you know they
are "dangerous" if they haven't been tried?  Is the Government's accusation
enough for you to assume it's true?

Above all:  for those justifying Obama's use of military commissions by
arguing that some terrorists can't be convicted in civilian courts because
the evidence against them is "tainted" because it was obtained by Bush's
torture, Obama himself claimed just yesterday that his military commissions
also won't allow such evidence ("We will no longer permit the use of
evidence -- as evidence statements that have been obtained using cruel,
inhuman, or degrading interrogation methods").  How does our civilian
court's refusal to consider evidence obtained by torture demonstrate the
need for Obama's military commissions if, as Obama himself claims, Obama's
military commissions also won't consider evidence obtained by torture?

Finally, don't virtually all progressives and Democrats argue that torture
produces unreliable evidence?  If it's really true (as Obama defenders
claim) that the evidence we have against these detainees was obtained by
torture and is therefore inadmissible in real courts, do you really think
such unreliable evidence -- evidence we obtained by torture -- should be the
basis for concluding that someone is so "dangerous" that they belong in
prison indefinitely with no trial?  If you don't trust evidence obtained by
torture, why do you trust it to justify holding someone forever, with no
trial, as "dangerous"?

(4)  Do other countries have indefinite preventive detention?

Obama yesterday suggested that other countries have turned to "preventive
detention" and that his proposal therefore isn't radical ("other countries
have grappled with this question; now, so must we").  Is that true?

In June of last year, there was a tumultuous political debate in Britain
that sheds ample light on this question.  In the era of IRA bombings, the
British Parliament passed a law allowing the Government to preventively
detain terrorist suspects for 14 days -- and then either have to charge them
or release them.  In 2006, Prime Minister Tony Blair -- citing the London
subway attacks and the need to "intervene early before a terrorist cell has
the opportunity to achieve its goals" -- wanted to increase the preventive
detention period to 90 days, but MPs from his own party and across the
political spectrum overwhelmingly opposed this, and ultimately increased it
only to 28 days.

In June of last year, Prime Minister Gordon Brown sought an expansion of
this preventive detention authority to 42 days -- a mere two weeks more.
Reacting to that extremely modest increase, a major political rebellion
erupted, with large numbers of Brown's own Labour Party joining with Tories
to vehemently oppose it as a major threat to liberty.  Ultimately, Brown's
42-day scheme barely passed the House of Commons.  As former Prime Minister
John Major put it in opposing the expansion to 42 days:

It is hard to justify: pre-charge detention in Canada is 24 hours; South
Africa, Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey
7½ days.

By rather stark and extreme contrast, Obama is seeking preventive detention
powers that are indefinite -- meaning without any end, potentially
permanent.  There's no time limit on the "preventive detention."  Compare
that power to the proposal that caused such a political storm in Britain and
what these other governments are empowered to do.  The suggestion that
indefinite preventive detention without charges is some sort of common or
traditional scheme is clearly false.

(5)   Is this comparable to traditional POW detentions?

When Bush supporters used to justify Bush/Cheney detention policies by
arguing that it's normal for "Prisoners of War" to be held without trials,
that argument was deeply misleading.  And it's no less misleading when made
now by Obama supporters.  That comparison is patently inappropriate for two
reasons:  (a) the circumstances of the apprehension, and (b) the fact that,
by all accounts, this "war" will not be over for decades, if ever, which
means -- unlike for traditional POWs, who are released once the war is over
-- these prisoners are going to be in a cage not for a few years, but for
decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a
real battlefield, wearing a uniform, while engaged in fighting.  The
potential for error and abuse in deciding who was a "combatant" was thus
minimal.  By contrast, many of the people we accuse in the "war on terror"
of being "combatants" aren't anywhere near a "battlefield," aren't part of
any army, aren't wearing any uniforms, etc.  Instead, many of them are
picked up from their homes, at work, off the streets.  In most cases, then,
we thus have little more than the say-so of the U.S. Government that they
are guilty, which is why actual judicial proceedings before imprisoning them
is so much more vital than in the standard POW situation.

Anyone who doubts that should just look at how many Guantanamo detainees
were accused of being "the worst of the worst" yet ended up being released
because they did absolutely nothing wrong.  Can anyone point to any
traditional POW situation where so many people were falsely accused and
where the risk of false accusations was so high?  For obvious reasons, this
is not and has never been a traditional POW detention scheme.

During the Bush era, that was a standard argument among Democrats, so why
should that change now?  Here is what Anne-Marie Slaughter -- now Obama's
Director of Policy Planning for the State Department -- said about Bush's
"POW" comparison on Fox News on November 21, 2001:

Military commissions have been around since the Revolutionary War. But
they've always been used to try spies that we find behind enemy lines. It's
normally a situation, you're on the battlefield, you find an enemy spy
behind your lines. You can't ship them to national court, so you provide a
kind of rough battlefield justice in a commission. You give them the best
process you can, and then you execute the sentence on the spot, which
generally means executing the defendant.

That's not this situation. It's not remotely like it.

As for duration, the U.S. government has repeatedly said that this "war" is
so different from standard wars because it will last for decades, if not
generations. Obama himself yesterday said that "unlike the Civil War or
World War II, we can't count on a surrender ceremony to bring this journey
to an end" and that we'll still be fighting this "war" "a year from now,
five years from now, and -- in all probability -- 10 years from now."  No
rational person can compare POW detentions of a finite and usually short
(2-5 years) duration to decades or life in a cage.  That's why, yesterday,
Law Professor Diane Marie Amann, in The New York Times, said this:

[Obama] signaled a plan by which [Guantanamo detainees] ? and perhaps other
detainees yet to be arrested? ? could remain in custody forever without
charge. There is no precedent in the American legal tradition for this kind
of preventive detention. That is not quite right: precedents do exist, among
them the Alien and Sedition Acts of 1798 and the Japanese internment of the
1940s, but they are widely seen as low points in America?s history under the
Constitution.

There are many things that can be said about indefinitely imprisoning people
with no charges who were not captured on any battlefield, but the claim that
this is some sort of standard or well-established practice in American
history is patently false.

(6)  Is it "due process" when the Government can guarantee it always wins?

If you really think about the argument Obama made yesterday -- when he
described the five categories of detainees and the procedures to which each
will be subjected -- it becomes manifest just how profound a violation of
Western conceptions of justice this is.  What Obama is saying is this:
we'll give real trials only to those detainees we know in advance we will
convict.  For those we don't think we can convict in a real court, we'll get
convictions in the military commissions I'm creating.  For those we can't
convict even in my military commissions, we'll just imprison them anyway
with no charges ("preventively detain" them).

Giving trials to people only when you know for sure, in advance, that you'll
get convictions is not due process.  Those are called "show trials."  In a
healthy system of justice, the Government gives everyone it wants to
imprison a trial and then imprisons only those whom it can convict.  The
process is constant (trials), and the outcome varies (convictions or
acquittals).

Obama is saying the opposite:  in his scheme, it is the outcome that is
constant (everyone ends up imprisoned), while the process varies and is
determined by the Government (trials for some; military commissions for
others; indefinite detention for the rest).  The Government picks and
chooses which process you get in order to ensure that it always wins.  A
more warped "system of justice" is hard to imagine,

(7)  Can we "be safe" by locking up all the Terrorists with no charges?

Obama stressed yesterday that the "preventive detention" system should be
created only through an act of Congress with "a process of periodic review,
so that any prolonged detention is carefully evaluated and justified."
That's certainly better than what Bush did:  namely, preventively detain
people with no oversight and no Congressional authorization -- in violation
of the law.  But as we learned with the Military Commissions Act of 2006 and
the Protect America Act of 2007, the mere fact that Congress approves of a
radical policy may mean that it is no longer lawless but it doesn't make it
justified.  As Professor Amann put it:  "no amount of procedures can justify
deprivations that, because of their very nature violate the Constitution?s
core guarantee of liberty."  Dan Froomkin said that no matter how many
procedures are created, that's "a dangerously extreme policy proposal."

Regarding Obama's "process" justification -- and regarding Obama's primary
argument that we need to preventively detain allegedly dangerous people in
order to keep us safe -- Digby said it best:

'We are still in a "war" against a method of violence, which means there is
no possible end and which means that the government can capture and imprison
anyone they determine to be "the enemy" forever.  The only thing that will
change is where the prisoners are held and few little procedural tweaks to
make it less capricious. (It's nice that some sort of official committee
will meet once in a while to decide if the war is over or if the prisoner is
finally too old to still be a "danger to Americans.")'

There seems to be some misunderstanding about Guantanamo. Somehow people
have gotten it into their heads is that it is nothing more than a symbol,
which can be dealt with simply by closing the prison. That's just not true.
Guantanamo is a symbol, true, but it's a symbol of a lawless,
unconstitutional detention and interrogation system. Changing the venue
doesn't solve the problem.

I know it's a mess, but the fact is that this isn't really that difficult,
except in the usual beltway kabuki political sense. There are literally tens
of thousands of potential terrorists all over the world who could
theoretically harm America. We cannot protect ourselves from that
possibility by keeping the handful we have in custody locked up forever,
whether in Guantanamo or some Super Max prison in the US. It's patently
absurd to obsess over these guys like it makes us even the slightest bit
safer to have them under indefinite lock and key so they "can't kill
Americans."

The mere fact that we are doing this makes us less safe because the complete
lack of faith we show in our constitution and our justice systems is what
fuels the idea that this country is weak and easily terrified. There is no
such thing as a terrorist suspect who is too dangerous to be set free. They
are a dime a dozen, they are all over the world and for every one we lock up
there will be three to take his place. There is not some finite number of
terrorists we can kill or capture and then the "war" will be over and the
babies will always be safe. This whole concept is nonsensical.

As I said yesterday, there were some positive aspects to Obama's speech.
His resolve to close Guantanamo in the face of all the fear-mongering, like
his release of the OLC memos, is commendable.  But the fact that a
Democratic President who ran on a platform of restoring America's standing
and returning to our core principles is now advocating the creation of a new
system of indefinite preventive detention -- something that is now sure to
become a standard view of Democratic politicians and hordes of Obama
supporters -- is by far the most consequential event yet in the formation of
Obama's civil liberties policies.

UPDATE: Here's what White House Counsel Greg Craig told The New Yorker's
Jane Mayer in February:

"It?s possible but hard to imagine Barack Obama as the first President of
the United States to introduce a preventive-detention law," Craig said.
"Our presumption is that there is no need to create a whole new system. Our
system is very capable."

"The first President of the United States to introduce a
preventive-detention law" is how Obama's own White House Counsel described
him.  Technically speaking, that is a form of change, but probably not the
type that many Obama voters expected.

UPDATE II: Ben Wizner of the ACLU's National Security Project is the lead
lawyer in the Jeppesen case, which resulted in the recent rejection by the
9th Circuit Court of Appeals of the Bush/Obama state secrets argument, and
also co-wrote (along with the ACLU's Jameel Jaffer) a superb article in
Salon in December making the case against preventive detention.  I spoke
with him this morning for roughly 20 minutes regarding the detention
policies proposed by Obama in yesterday's speech.  It can be heard by
clicking PLAY on the recorder below.  A transcript will be posted shortly.

UPDATE III: Rachel Maddow was superb last night -- truly superb -- on the
topic of Obama's preventive detention proposal:
[Maddow commentary, which really is pretty good, can be accessed at this
point in
www.salon.com/opinion/greenwald/2009/05/22/preventive_detention/print.html
--FF]


UPDATE IV:  The New Yorker's Amy Davidson compares Obama's detention
proposal to the internment of Japanese-Americans during World War II (as did
Professor Amann, quoted above).  Hilzoy, of The Washington Monthly, writes:
"If we don't have enough evidence to charge someone with a crime, we don't
have enough evidence to hold them. Period" and "the power to detain people
without filing criminal charges against them is a dictatorial power."
Salon's Joan Walsh quotes the Center for Constitutional Rights' Vincent
Warren as saying:  "They?re creating, essentially, an American Gulag."  The
Philadelphia Inquirer's Will Bunch says of Obama's proposal:  "What he's
proposing is against one of this country's core principles" and "this is why
people need to keep the pressure on Obama -- even those inclined to view his
presidency favorably."

UPDATE V:  The Atlantic's Marc Ambinder -- who is as close to the Obama
White House as any journalist around -- makes an important point about Obama
that I really wish more of his supporters would appreciate:

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

Ambinder doesn't mean me personally or exclusively; he means people who are
criticizing Obama not in order to harm him politically, but in order to
pressure him to do better.  It's not just the right, but the duty, of
citizens to pressure and criticize political leaders when they adopt
policies that one finds objectionable or destructive.  Criticism of this
sort is a vital check on political leaders -- a key way to impose
accountability -- and Obama himself has said as much many times before. 

It has nothing to do with personalities or allegiances.  It doesn't matter
if one "likes" or "trusts" Obama or thinks he's a good or bad person.
That's all irrelevant.  The only thing that matters is whether one thinks
that the actions he's undertaking are helpful or harmful.  If they're
harmful, one should criticize them.  Where, as here, they're very harmful
and dangerous, one should criticize them loudly.  Obama himself, according
to Ambinder, "finds this outside pressure healthy and useful."  And it is.
It's not only healthy and useful but absolutely vital.

UPDATE VI: Bearing in mind what Obama repeatedly pledged to do while
running, this headline from The New York Times this morning is rather
extraordinary:

"President's Detention Plan Tests
American Legal Tradition
By WILLIAM GlABERSON

Determining the constitutionality of President Obama's plan for "prolonged
detention" of terror suspects without trial is likely to require a national
look in the mirror."

As Greg Craig put it:  "hard to imagine Barack Obama as the first President
of the United States to introduce a preventive-detention law."
-- Glenn Greenwald



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