Monday, May 25, 2009
Facts and myths about Obama's preventive detention proposal
...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?...
...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....
Hailing the leader as a War President and the powers that go with it
In a February, 2004 interview with Tim Russert, George Bush provoked much derision by proudly declaring himself to be what he called a "war president." This week, Newsweek's Editor Jon Meacham interviewed Barack Obama, adopted Bush's label and applied it to Obama, asking him:
Can anything get you ready to be a war president?
Nothing excites our media stars more than saluting and fetishizing the President as a "War President" and "Commander-in-Chief" (David Broder today, in his column entitled "Obama in Command": Obama is "continuing, with minor modifications, the policies and practices of his Republican predecessor . . . . Obama's liberal critics are right. He is a different man now. He has learned what it means to be commander in chief"). But isn't the phrase "war president" a complete redundancy when it comes to the U.S.? Which American presidents were not "war presidents"? ...
...In any event, the U.S. is, more or less, a nation permanently at war. One can debate whether all or some of our wars are good or not, but what can't be debated is that we fight wars far, far more than any other country -- basically, continuously. That's just a fact. After Bush 41's invasion of Panama, R.W. Apple wrote on the front page of The New York Times that the invasion "constituted a Presidential initiation rite" whereby:
For better or for worse, most American leaders since World War II have felt a need to demonstrate their willingness to shed blood to protect or advance what they construe as the national interest.
In other words, there's no such thing as an American President who is not a "war President." We never go more than a few years without some kind of a direct war, and are always waging covert and indirect ones. American presidents are inherently "war presidents." We don't really have any other kind. To vest a specific power in a President on the ground that he's a "War President" is to vest that power in presidents generally and permanently.
That's why this media construct that things are different for "war presidents" -- we have to give "war presidents" greater power and leeway; demand less transparency and accept more secrecy; acquiesce to abridgments of civil liberties when "America is at war"; and, coming soon under the Change banner, allow them the right to imprison people indefinitely with no trials even beyond "war zones" -- is so manipulative and misleading. It implies that "America at war" is some sort of unusual and temporary circumstance rather than what it is: our permanent state of affairs. ...
Obama's civil liberties speech
Obama's speech this morning, like most Obama speeches, made pretty points in rhetorically effective ways about the Constitution, our values, transparency, oversight, the state secrets privilege, and the rule of law. But his actions, in many critical cases, have repeatedly run afoul of those words. And while his well-crafted speech can have a positive impact on our debate and contained some welcome and rare arguments from a high-level political leader -- changes in the terms of the debate are prerequisites to changes in policy and the value of rhetoric shouldn't be understated -- they're still just words until his actions become consistent with them.
Worse, Obama repeatedly invoked the paradigm of The War on Terror to justify some extreme policies -- see my post of earlier today on this practice -- beginning with his rather startling declaration that he will work to create a system of "preventive detention" for accused Terrorists without a trial, in order to keep locked up indefinitely people who, in his words, "cannot be prosecuted yet who pose a clear danger to the American people." In other words, even as he paid repeated homage to "our values" and "our timeless ideals," he demanded the power (albeit with unspecified judicial and Congressional oversight) to keep people in prison with no charges or proof of any crime having been committed, all while emphasizing that this "war" will continue for at least ten years. ...
