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How's That Hopey Changey Stuff Workin' Out For Ya?

Feb 16, 2010
By .
Politics & Current Events

Didn't we fight a war for independence from Britain over this sort of thing?

The White House is considering endorsing a law that would allow the indefinite detention of some alleged terrorists without trial as part of efforts to break a logjam with Congress over President Barack Obama’s plans to close the Guantanamo Bay prison, Sen. Lindsey Graham (R-S.C.) said Monday.

Last summer, White House officials said they had ruled out seeking a “preventive detention” statute as a way to deal with anti-terror detainees, saying the administration would hold any Guantanamo prisoners brought to the U.S. in criminal courts or under the general “law of war” principles permitting detention of enemy combatants.

However, speaking at a news conference in Greenville, S.C., Monday, Graham said the White House now seems open to a new law to lay out the standards for open-ended imprisonment of those alleged to be members of or fighters for Al Qaeda or the Taliban.

That would be life imprisonment without benefit of trial, either by civil jury, by judge, or even a court-martial.

Of course, the Constitution, as I once read it, would seem to prohibit such a thing.  The idea that the executive branch, with congressional approval, could declare any criminal conspiracy or subversive organization the proponent of war or rebellion, and detain alleged members without trial, forever, seems to cut against the grain of the Fifth Amendment's guaranty that liberty shall not be taken without due process of law, or the Sixth Amendment's protection of the right to a speedy trial before a jury in criminal prosecution.

Oh, silly framers!  You forgot to define "due process of law"!  You forgot to define "criminal prosecution"!   You just assumed people would know what those terms meant.  Well, the Constitution is a "living, breathing document," with "emanations" and "penumbras".

If those emanations and penumbras can live and breathe out things like a natural right to abort a baby, they can certainly squirt out botched abortions like "preventive administrative detention," now can't they?

Mind you, I hold no brief for Khalid Sheikh Muhammad.  I'll cheer as hard when he dances with the Big Needle as I did for Timothy McVeigh.  After he's convicted in a court of law.

And also mind you, Lindsey Graham is a bloviating asshat who takes a prurient interest in the sex lives of political opponents.  He could be bloviating out of his ass now.  But I doubt it.  Obama's been dangling this turd since last May.

I didn't vote for Obama, or McCain for that matter.  But one of the things that I admired in Obama's campaign rhetoric was the promise to return to a rule of law, to adhere to little footnotey-type thoughts like those expressed in the dissent by Justices Scalia and Stevens in Hamdi v. Rumsfeld:

It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.

Oh well, what's a little essential liberty, when the mid-term elections are approaching?

Via.

Last 5 posts by Patrick Non-White

9 Comments
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9 Comments

  1. ian  •  Feb 16, 2010 @5:16 pm

    I am all for detaining foreign threats to the US, for as long as necessary to protect the US form further harm. The Taliban are "legal" prisoners of war captured in lawful military action and can be detained indefinately until the end of hostilities. Terrorists should be tried in a: their country of origin if their terror acts were upon their country of origin or b: in a world tribunal, since their acts cross national borders. I imagine that a tribunal put together by the UN wouldn't hold to the strict legal codes the US does and evidence gathererd questionably or by top secret means would still be admissible there, even though it wouldn't be in the US. sounds like great win-win for the US to me.
    I have no doubt that there were innocent people caught up in the arrests of Taliban and Al Queda suspects. I also have no doubt that all of them have by now been released. The truth is, Guantanamo has released a vast majority of its inmates over the years, keeping only the most hardcore and virulent fundamentalists who still preach "Death to America".
    We all need to gain persepective and stop being so black and white. not everyone we captured is still a prisoner, not every prisoner is some poor suffereing innocent, and not every goverment action in support of indefinate terrorist incarceration is intended to drive a nail into coffin of the constitution. If anyone thinks these guys that are being held there are there even though we have no evidence proving their involvement, I'd say your crazy. And lest you think this is a new trend towards imperialism, lookup the japanese internment camps of WW2 and let me know how many got trials………

    I am far more concerend with Obama ok'ing a national cell phone data tracking center without warrants……..

  2. Ken  •  Feb 16, 2010 @5:49 pm

    I have no doubt that there were innocent people caught up in the arrests of Taliban and Al Queda suspects. I also have no doubt that all of them have by now been released.

    Ian, I don't know the basis for your certainty, unless it is simple faith in government. I lack that faith.

    It really doesn't matter how narrowly you define the group of people who are unpersons — persons who may be detained, tortured, or killed without anything resembling due process. You could define that group as "only really genuine for-sure about-to-kill-us terrorists." The rubber meets the road when you ask "who decides whether someone falls into that group, and how do they decide, and who (if anyone) reviews the decision?" If there is a group defined as unpersons with no rights, and if the government's decision that someone belongs in that group is both secret and not subject to neutral review, then it doesn't matter a bit that the group is very narrowly defined. The government can put whomever it wants into the group — and therefore detain indefinitely whomever it wants — based upon its own say-so.

    You can say that won't happen, because we can trust the government. I find that to be a fundamentally totalitarian proposition (and not in the least conservative, not that that's either her or there.)

    Yes, the government has released some people from Gitmo. Forces on the neocon right have been quick to emphasize that some of those released former detainees immediately joined (or re-joined) violent groups, and were later killed or captured while engaged in conspiracy or violence. This, we are told, is supposed to inspire us to trust the government. But I fail to see how the government's decision that someone is a violent terrorist is more worthy of trust now that we know that it's judgment about who isn't a terrorist is faulty.

  3. Scott Jacobs  •  Feb 16, 2010 @9:11 pm

    Let us not forget that the Government doesn't have to prove you are a threat – that would require some sort of trial and due process.

    So Person X can be, under the law spoken of above, kept indefinitely simply because the government wants to do so.

    Think about that for a second, and ponder how that might not end well…

  4. RD  •  Feb 16, 2010 @9:37 pm

    ian: "The truth is, Guantanamo has released a vast majority of its inmates over the years, keeping only the most hardcore and virulent fundamentalists who still preach “Death to America”."
    *groan*

    Essentially, what Ken said – but less articulate.

    Patrick, you act like this is some radical change in American policy, it isn't. Maybe enshrining this constitutional abortion into law will be the first step in having the whole notion obliterated by the Supreme Court? Maybe not. But the law is the logical conclusion of practices loudly condemned by the very people you paint with the "hopey changey" allusion. The glibertarianism is tiresome, dude. Good for you that you didn't fall for Obama or McCain. Which candidate did you go for? The libertarian endorsed by white nationalists or the VDARE columnist? I mean, while we're painting with broad brushes and all.

    It's nice that you find the abdication of the rule of law something to be concerned about. Though I find it funny and a little creepy that for all your bluster about the abuse of power and deserved mistrust of the government's motives, you'll still find time to dance a happy dance for a state sanctioned execution, should it ever be handed down. As long as the paperwork is in order, I suppose.

  5. Mandy  •  Feb 17, 2010 @8:38 am

    Ian – I think we're all aware that not everyone being held in Gitmo is "some poor, suffering innocent." The Constitution wasn't written just to protect, or even mainly to proetct, the innocent. No one is trying to run over their rights. The Constitution was written to protect the guilty, the assholes, the no-good-nics, as my criminal procedure professor was wont to say.
    And the bit about, oh, this isn't new; we did it to the Japanese. Yes, we did. And it was as much as abomonation then as it is now. Just because we've done it before doesn't make it right.

  6. Patrick  •  Feb 17, 2010 @9:15 am

    But the law is the logical conclusion of practices loudly condemned by the very people you paint with the “hopey changey” allusion.

    RD, you're missing the point in your "no enemies to the left" zeal. Sadly this is a pattern.

    That the people who loudly condemned these practices while running to take over the government are now following them to what you describe as a logical conclusion is the point. They sold their constituents (or many of them) a bill of goods. Are you happy that you were conned? Or did you know that you were being conned all along?

    As for your question about my vote, yes, I voted for Barr, knowing all about his warts. It was a vote to end the drug war, to end Justice Department support for DOMA, "Don't Ask, Don't Tell," and the like, to end perpetual imprisonment without trial, and for fiscal responsibility by the federal government.

    Why should I have voted for Obama? Tell me how, on any of the issues named above, or on the issue which is the subject of this post, he's any different from McSame? At least he can't take my vote for granted.

  7. Ken  •  Feb 17, 2010 @9:33 am

    Hey, say what you like about Barr, but who else is taking seriously the witch/warlock threat to our military readiness?

  8. Little Raven  •  Feb 17, 2010 @9:58 am

    Doesn't McCain oppose ending Don't Ask Don't Tell?

    I don't think that alleviates Patrick's larger point, but it does offer evidence that Obama and McCain are not QUITE identical.

  9. Patrick  •  Feb 17, 2010 @12:15 pm

    So far, Obama has opposed ending Don't Ask Don't Tell (short-hand for statutory discrimination against gay servicemembers – really the policy that bears the name was an improvement over prior policy enforcing the same statute). He hasn't ordered the military not to enforce 10 U.S.C. § 654, and he hasn't made its repeal a priority at all. He could do so with the stroke of a pen.

    The prohibition on gay people serving in the military is statutory, but would Obama be impeached for declaring, by executive order, that in light of the present emergency (two wars), the President finds that all currently serving military personnel are essential, and so he exercises his authority as commander in chief not to enforce 10 U.S.C. § 654 for the duration of the present emergency.

    Which is likely to last forever, or until 10 U.S.C. § 654 is repealed as silly.