The Obama-Gates Department of Detentions

By Scott Horton

May 28, 11:18 AM, 2010

The White House has released its 52-page National Security Strategy (PDF). If you saw President Obama’s West Point speech, you already know the highlights of this policy, and it’s unsurprising if you have tracked foreign policy issues since the 2008 presidential campaign. The strategy can be distinguished from Bush-era policy by its heavy reliance on “soft power,” its recognition of the importance of building and maintaining alliances, and its geeky fascination with the national-security consequences of technology and innovation. The portions dealing with Pakistan and Afghanistan in particular reflect significant shifts in approach. But I join Spencer Ackerman in flagging one strange passage, under the heading of “Strengthen the Power of Our Example”:

The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted—but pose a danger to the American people—we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.

It’s hard to pass by the reference to detaining prisoners “who cannot be prosecuted.” If they’re involved with terrorists, the law provides the tools to arrest and charge them. This is about cases in which the United States has no meaningful evidence that would link the person held to a terrorist group. It looks like an endorsement of indefinitely detaining persons against whom the United States has no evidence of criminal conduct but whom it “suspects” may constitute a threat, usually based on the say-so of the intelligence service of some tyrannical but allied foreign power. That is the very definition of tyrannical conduct, yet here it is perversely touted as an example for emulation by others.

The Obama Administration has failed to provide a coherent justification for its detentions policy. This hasn’t stopped the District of Columbia Circuit—the amen corner for judicial acquiescence in the face of power grabs by the Executive—from giving it a green light to build and expand future Guantánamos, as is shown by the recent exercise in judicial pointlessness called Al Maqaleh v. Gates (PDF). Daphne Eviatar’s recent post discusses the consequences of this decision. In a word, it is a sweeping abdication of judicial responsibility in the face of the Executive’s proposal to build a global prison regime. It’s a death knell for the good old doctrine that the Constitution follows the flag.


remainder in full: http://www.harpers.org/archive/2010/05/hbc-90007124

for the legality of such detentions, in impeachment hearings for the lot of them - congress, judges, executives.

The fact that the detainees that cannot be prosecuted were tortured you would think would demand action?

Why are they all breaking their oaths to uphold and defend the constitution? Something really stinks here.

and that they'd BETTER have their "Peasant Protection Measures" in place when it finally happens.

Modern economy is nothing but a Ponzi Scheme. Modern American Politics is a "Good Cop/Bad Cop" dumbshow to keep we peasants docile, confused, and if we get angry, to make sure it isn't directed at our Lords and Masters.

The least 10 years (and really the last 30, though in the last decade it has become crushingly obvious) have demonstated that it really is probably as simple as that, though the smokescreens and propaganda and actual nuts and bolts of it is considerably more complex.

that candidate Obama was a constitutional law professor- whole lot of good it did.