Preventive detention is consistent with our values.

Preventive detention is the basis for holding POWs, for involuntary commitment of mentally ill persons who pose a threat to themselves or others, and even for quarantine of those who have, or may have, infectious diseases. The worry in President Obama's plan to establish a legal framework for preventive detention of those who "in effect remain at war with the United States" is that it may result in those who are no longer, or never were, in effect, at war with the United States being detained possibly for the rest of their lives. That is why there must be "clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified." Crucial to achieving this goal is establishing an adequate standard of proof. Mere suspicion is an inadequate basis for prolonged detention and would be clearly inconsistent with our values. A preponderance of the evidence is, in my opinion, also an inadeuqate basis for prolonged detention. Perhaps a "substantial evidence" standard (sometimes used for involuntary commitments) would be appropriate. That standard falls somewhere between the "proponderance of the evidence" standard used to resolve lawsuits and the "beyond a reasonable doubt" standard used in criminal trials. With fair procedures and an adequate standard of evidence, the system might be acceptable. I confess that I doubt that what will emerge will be acceptable, but I am hopeful.

The relevant text from President Obama's speech:

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.

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. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

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.

I am sympathetic to the civil libertarian aversion to preventive detention. Such detention flies straight into the presumption of innocence, and the guarantees of due process of law enshrined in the Fifth and Fourteenth Amendments. So please don't lecture me on those issues.

Obama MUST do something. The ONLY guarantee of due process is good procedures. Anyone who ever had a family member quarantined with polio, tuberculosis or typhoid knows the horrors a democratic society can inflict on its own citizens -- none of whom are criminals.

It's a balancing test. A knee-jerk rejection of preventive detention is neither based on reality, nor on the rule of law.

If people bite off on preventative detention they are no better than the Bush sheeple in my opinion.

I'm done arguing with the willfully ignorant.

I can't abide those who say "Bush Obama Doctrine".

Must not care to read the details, or never like Obama to begin with...

Thanks for this post.

Recommended.

:patriot:

... because he didn't HAVE to say that part. Could have done it and never mentioned it publically .... esp. not in a major speech. Add to that the fact there's he stuck a big fat "if" on the beginning of the sentence and not just a "when."

And if he does it, he says he'd do it with the backing of the entire American government including both the legislative and judicial branches .... not only is it an excellent example of CYA, it's a VERY tall order esp. considering the Supreme Court has struck down every attempt the Bush admin. made to hold detainees for an extended period of time. Is he promising something he know can't be done?

You know, the more I think about it, I'm starting to see spin merits this had when dealing with the right. If you talk about not only keeping some prisoners in unbreakable prisons, and other hypothetical prisoners indefinately, as long as it keeps "us safe....."

Maybe he doesn't care what the left thinks of that part of his speech because they were words never indended for their benefit anyway.

Maybe it's political cover .... maybe it's a big mind screw?

I'm ramblin' ..... dont mind me. :)

it's notable that he contrasted his careful approach to Bush's careless approach, which did lead to some released detainees returning to the battlefield.

...we aren't going to have a trial. We're just going to hold her for an indefinite amount of time.

Would that be OK with you?

that she wanted to kill innocent Iranians, then it would be a close call.

...and there was no trial?

I worry that adequate procedural safeguards will not be instituted. That's one reason why I'm skeptical about Obama's proposal. Nevertheless, Obama suggested that he wants the Courts involved even though there will not be a criminal trial. Civilian judicial oversight is crucial.

He says where the evidence may fail to prosecute because of taint from what was done to them but there is still substantial evidence to suggest they will return to it. So I was under the impression there would still be some sort of trial---the evidence just might not be enough.

rather than the leader of the country. And if they have substantial evidence, doesn't it make sense to charge, convict and sentence them?

He saus that one man should not be making such decisions and that all three branches of the govt should be involved.

weigh in and I hope the treasonous Supremes actually do something right for once. I don't believe Congress will do anything to put the brakes on Obama because they have the abused spouse syndrome. I am not confident in the oversight, for sure.

than super max.

you take away someone's freedom indefinitely without any sort of legitimate process, does the color of the box matter that much? :shrug:

And it will lead to slippery slope, he ran on closing Gitmo and ending the war. Now he is trying to re-define the same Bush doctrine just as Rachel pointed out so wonderfully the other night.

He is acting like George W. Obama.:eyes:

Most detainees are going to be tried. The only ones they aren't trying at the moment are ones that have a high chance of being guilty but also were interrogated using illegal methods. These illegal methods have been banned. Given that future Presidents are smart enough to see what torture will do to your legacy, then we should be hopeful there isn't such a situation created again in the future.

I didn't get the message that this was going to be some brand new extension of Presidential power. Obama presented the idea in the context of how to handle existing detainees who were dangerous but also had a severely tainted legal case against them that would let them off the hook. Its like an OJ Simpson situation, only 100 times worse.

Also, this plan is suppose to include a broad judicial and congressional review process. We should always consider that.

Nope, due process for all. Due process is not just a right that should be afforded to all but it's also a responsibility for each of us to make sure that all in our charge are afforded that right.

They have a habeas right to determine whether they're members of AQ. If they are members of AQ, they can be detained as enemy/hostile combatants.

BTW, it's quite impossible to have a war on an emotion. As well, because it's so amorphous, there won't ever be an end. War without end. Nifty, eh?

Nope, if we hold prisoners without trial indefinitely, then we are no better than them. Perhaps we ought to just kill them, ya think? I mean it would certainly be neater than keeping them in an illegal status for the rest of their lives. Oh, wait, THAT isn't keeping with our values but locking them up like caged animals is.

Sorry, if we can't charge them in a court of law, we need to let them go. We are a nation of laws and that is our law. Besides, if they are, in fact POWs, then the Geneva conventions cover them and that's a bit of a sticky wicket, not only for the previous leaders of this lawless country, but also for the current ones. Think about that one for a while.

It's about time we all grew up and realized that there are people out there who want to hurt us and even terrorize us. They might even be out there wanting to do us harm if we hadn't already spent the last half century behaving badly toward them. But you see, we did behave badly in so many small countries and well, that just comes home to roost and life isn't all perfectly safe or sane, so we just need to stop looking for a big daddy, be it a sky daddy or a political daddy to protect us. Al Quaeda was funded by us so using them as the big bad bogeyman is disingenuous at best.

Preventative detention is indefensible and that anyone on this website, of all places, would actually try to defend it is astounding to me.

The Supreme Court has held over and over again that it is NOT the case that anyone captured abroad must be tried or let go. Just because you keep saying it doesn't make it true. Those captured abroad have limited due process rights (limited compared to those captured for a crime in the U.S.). They do not involve the right to a full scale trial, and no justice on the Supreme Court thinks otherwise.

Here's your linky: http://www.unhchr.ch/html/menu3/b/91.htm

Article 3, part D is especially pertinent.

We signed onto that one a long time ago, so just because a national court seems to think we don't have to follow the Geneva Conventions doesn't make it so.

And yes, I'm aware that Bush made quite a habit of ignoring the Geneva Conventions. That is why I want him and most of his administration to be tried for War Crimes. If Obama chooses to ignore the same Conventions, then I will advocate and agitate for him to also be tried for War Crimes. I don't care what letter is after a politician's name, I will not accept such lawless behavior. I am a citizen first and a Democrat second.

to basic American rights nor to international rights as POWs? An interesting and morally bankrupt world you live in and it's set on a very slippery slope, that world you live in.

If we do what President Obama has suggested, then we are no better than many a banana republic. Luckily, I believe he can be made to see just how dangerous his idea is. You, I'm not so sure about. But you don't lead this country, so I'm pretty okay if you have some fucked up ideas with regards to human rights. You aren't likely to cause too much damage. Obama, unfortunately, has the power to cause huge damage.

Whereas your view (that all those captured abroad have all constitutional rights of a U.S. citizen) is disputed by Obama, both houses of Congress, all 9 justices on the Supreme Court, and judicial precedent dating back centuries.

No one is talking about indefinite detention with no judicial review. The question is what is the form of the judicial review. According to the Supreme Court, there has to be some meaningful judicial review (where the accused can present and rebut evidence in front of a judge), but it certainly does not have to be a full-blown trial with the exact same rules of evidence and "beyond-a-reasonable-doubt" standard of evidence.

Nor would such a policy make any sense. Normal police officers in the U.S. can afford to be meticulous about safeguarding all evidence, gathering witnesses, etc, whereas soldiers in the military do not have that luxury. The courts are not going to force a soldier to fly to the U.S. for a court hearing so that the defense attorney of the accused can confront them. It just isn't going to happen, and it is not required by law or the Constitution under any reasonable interpretation.

Of course, you will probably accuse me of trashing the Constitution for even bringing up these practical complexities. And of course you are entitled to your opinion. But you are not entitled to your facts, and you are factually wrong about what is legal and what is not.

is a really good thing. I don't think we are still so cowed that we will allow him to implement this. Of course, during the last eight years, there were numerous times when something I thought would not be allowed to stand, was.

I don't use ad hominem attacks, at least I try not to. I think you are using tortured logic to be able to defend the indefensible but I don't know what your views about the Constitution are. I have a pretty good idea of what you think about international law.

There are currently 5 justices on the Supreme Court that have a moderate view (that detainees are entitled to some due process rights, but not nearly all due process rights that U.S. citizens are entitled to). There are another 4 justices who believe that detainees practically have no due process rights. NONE of the justices agree with you that the detainees captured abroad have anywhere close to the full due process rights of a U.S. citizen. Not one. You are claiming that the detainees have certain rights that not only do they not have, but that aren't even being debated.

Maybe the fact that not one justice agrees with your position is "tortured logic," but I'm really not even expressing an opinion here. I'm simply stating how the law is applied in reality on this issue, and what parts are actually being debated/litigated. If you read the Supreme Courts opinions on these matters, you will see that even the countours of debate on these issues are focused far away from your position (let alone the actual decisions).

While I of course I can only guess about what you mean by something so general as "what I think about international law," I'm pretty sure that you are way off base in what you think I believe. I have not even stated what I believe on this issue, except for the fact that my position lies within the realm of what is currently being debated (as opposed to the idea that the Guantanamo detainees have the same due process rights as U.S. citizens down to a T, which is not). All I'm trying to do is correct the misimpression others will have when the read on DU that "We are trashing the Constitution unless the Guantanamo detainees are treated exactly as U.S. criminals." That is a straightforward, simple, and rhetorically pleasing position, but it is completely without basis in the law and ignores the significant legal and practical complexities involved in the issue.

the supreme court has decided that due process does not necessarily require criminal charges and a proper trial.

or not.

on the meaning of the Constitution (according to the Constitution).

It works both ways, you know.

...that discusses the different degrees of detainees, and which ones should be held indefinitely without a public trial.

I missed that part.
Thanks.

actively engaged in hostilities with our military should be summarily be put back in the field to shoot more of our soldiers?

Jefferson would laugh his ass off at you.

Our Constitution stands as it is. It has served us well through many wars and difficult times.
Our President does NOT need any extra powers than those already specified.
In fact, our Constitution (as well as the Magna Carta) absolutely forbids that any member of our government have the ability to imprison anybody without due process as specified within the Constitution.....especially for Future Crimes.

The only thing Jefferson would laugh at me for is that I have NOT already taken up arms against a government that no longer operates under the constraints placed upon it by the documents that Jefferson wrote.

Here.
Franklin wrote this with YOU in mind:

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."---Ben Franklin

but rather those skanky terrorists are and it will never happen to him.......................

traditional due process rights.

If he were to leave the country, renounce his U.S. citizenship, and then be captured, then he might be giving up liberties.

We imprison prisoners of war ALL the time. No trial, no anything. No one knows when the war is going to end, and those captured are prisoners until it does. Why do we keep prisoners of war? To prevent them from rejoining the battle.

In this case, we are not talking about prisoners of war (as those captured do not wear the uniform of a nation or abide by the laws of war). But that doesn't immediately give them all due process rights afforded to citizens under the 6th amendment. According to the Supreme Court, someone captured abroad is given some rights, including the right to challenge his detention by a judge and the ability to present and rebut evidence. But this is far from a full trial with all protections of the sixth amendment. This has been well established by the judicial branch, and no justice sitting on the Supreme Court would agree with your out-of-the-mainstream view on what the Constitution means.

So the War on Terror will be a never ending war. Orwell would be so proud of us.

Why do accept this Republican framing of the world?

Once Al-Qaeda is sufficiently destroyed/dismantled so it can no longer attack us, the legal arguments for holding members of Al-Qaeda captured abroad would diminish.

Actually, they are just the placeholder for the Terrorists of the moment (and BTW, a wholly created subsidiary of our own CIA. Whether they are currently independent of our CIA is an open question). It's beginning to dawn on me that you really are that gullible. You are a politician's wet dream. A voter who can be manipulated into supporting whatever they want you to support.

Al Qaeda is responsible for an attack on our country. Congress authorized the President to use all necessary and appropriate force against those responsible for 9/11. This gives the President certain powers to prosecute the war against Al Qaeda that he would not otherwise have. If the war on Al Qaeda finished (to the extent that it could no longer attack our country), it wouldn't matter what the President said. The President would no longer have the authority to do some of the things he could do during the war, and the judicial branch would no longer defer to the President to the extent they are now.

You clearly didn't get the memo. :sarcasm:

This is really astonishing isn't it? People on this website are usually much more educated about our country than this.

"Preventive detention" is the same shit George W. bUsh accused the likes of Saddam Hussein of committing.

Illegal.

Immoral.

And just plain WRONG.

Spin that changes what happened and is happening to the Gitmo detainees from illegal imprisonment to a necessary detainment.

All republiCons should be detained.

I don't think the Constitution would agree. But who pays attention to the Constitution anymore.

Let us decide who should be detained without due process. Trust us, we know what is best.

That makes even the stupidest ideas okey dokey.

I'm appalled.

POWs are held only during the duration ofr an actual war, not for the duration of a republican wet dream.

Mentally ill persons are held only as long as necessary for treatment, not for incarceration.

Are you seriously equating infectious patients with terrorists?

As for the rest of your post, :puke:

That is not a Republican wet dream. That is the finding of all three branches of the United States government.

The reality that 90% of the country accepts is not 'fucked up.'

And, compared to "armed conflicts" that are actually wars, the rationale for preventive detention is so tenuous as to be indeed fucked up.

As long as you are conflating statistics, what percentage of the country is in favor of preventive indefinite detention of unspecified, unidentified, shadowy "terrorists"?

Hadn't you heard? Today it's AQ, tomorrow Iran or wait, Iraq. No wait, we're already doing that one. I know, I know! Kim Il Jong! Yeah, let's get terrified!!!!!

Booga booga booga, Terra, terra, terra!!!!! Geez, haven't you had enough of our government jerking your chain like that? It's so been done already. Grow up and stop believing that the government has your best interests at heart. They're playing politics with your fear and you are so easy to scare. You and half of the rest of America. But you've been here long enough to know better.

Link: http://online.wsj.com/article/SB123845123690371231.html

Different term, same ol' shit.

Did you post a similar screed when Bush kept all of those people in Gitmo without charge for 5+ years. I'm sorry but your logic is as tortured as Obama's on this subject.

and he was doing it without the sort of legal framework Obama is talking about. I beleive that if someone makes it clear that they want to kill innocent people, detaining them to prevent them from doing so is not wrong.

Don't speak for me. This is not anymore consistent with my values when Obama does it than when Bush did it. The D after his name doesn't blind me. I canvassed and donated and voted for the guy but that doesn't make him one little bit right on this issue.

The other labels concede the lie that this is "about them" (and their "threat"), rather than the truth that it is about us (and our fear).

Obama has adopted the core bushcheney/beltway paranoia -- about how to treat "evildoers" on both sides of the permanent "war on terra."

The notion that our founding principles, our Constitution, and the treaty promises our greater generations made have suddenly become "quaint" and have now failed us -- that we must create "special purpose entities" (like Enron and the Banksters), rather than abide by their collective wisdom and experience -- is the core delusion that will continue to eat like an acid through our social fabric.

---

Some poll told the Obama camp that Americans want him to be Strong On Terror (tm) and so he's going to use the detainees as political footballs to prove his strength and win brownie points with the still terrified Americans clamoring for protection from President Daddy. This is a cynical ploy and Obama and his administration are better than this. They aren't being better than this right now but I know they are overall better than this and I hope they realize what a stupid idea this is.

I'm just glad there are people like Willem Buiter to dispell this type of toxic quasi-fascistic reasoning.

Fom http://blogs.ft.com/maverecon/2009/05/obushma-biney-in-the-home-of-the-frightened/">Maverecon:

Obushma-Biney in the Home of the Frightened

The spinelessness and moral cowardice of the Obama administration know no bounds. The Bush-Cheney team ordered the torture and abuse of prisoners in Guantánamo Bay Naval Base and assorted other locations abroad - offshore detention without trial as well as torture by US officials or persons acting under their instructions being permitted by Article VIII of the United States Constitution, as confirmed in the XXVIIIth Amendment to the US Constitution.

Candidate Obama declares he abhors torture and deplores what went on in Gitmo and in secret detention centres around the world, but President Obama decides that the Camp may have to remain open for another year, as he doesn’t seem to know what to do with the prisoners. The right thing to do would have been to send a plane to Guantánamo Bay Naval Base on the day of his inauguration, to move all the prisoners to the US.

President Obama then also decides not to prosecute those who committed the crimes of torture or abuse of prisoners or were responsible for these crimes. The president’s excuse was was that he sought to turn the page on “a dark and painful chapter”. It was a “time for reflection, not for retribution”, he said.

He is quite wrong. Reflection complements the law. It is not a substitute for it. Those who can be charged with these offences should be tried and, if found guilty, punished according to the law. If among the guilty parties are CIA agents and former vice-president Dick Cheney, then so be it. If you cannot do the time, you should not do the crime. This is not vengeance, it is justice - and it is the law. Justice must be done and must be seen to be done before healing and reconciliation can start.

http://blogs.ft.com/maverecon/2009/05/obushma-biney-in-the-home-of-the-frightened/">More...

They'll get together decide they don't like thing the way they are and then draft a document to present to Obama.

A new constitution or a "Charter", if you will. One that will GUARANTEE the rights of a prisoner.

And it will be big. A magnificent Charter. I've got it! We'll give it a Latin name because that's the law of jurispudence.

We'll call it the "MAGNA CARTA"

Great idea, huh?

Everyone has to give up some liberty so we can be safe. Well, not everybody, not yet. Right now, it's just the scary terrorists or the scary maybe future terrorists, but later, well, you know, right?..........

Fucked up shit, huh?

Because it doesn't to me. It's like saying that the problem with torture is that people took pictures of it.

-- who are these people "who can't be tried"? They are the ones whose testimony would put Bush, Cheney, Rumsfeld, Gonzalez, et al. in leg irons and chains and then at the end of a gallows.
I have come to realize that Obama will stop at nothing to cover up these monstrous crimes.

I can only conclude that you being unfair to our President.

Use of state secrets to block judicial review of executive branch lawbreaking
Putting "looking forward" over the rule of law whenever the subject comes up
Denial of habeas corpus to people who have been kidnapped and transported to a war zone (such as Bagram).
Opposing Valerie Plame's lawsuit.
Threatening the British govt. not to cooperate in intelligence gathering if "evidence" (ie, facts of torture) in the Binyam Mohamed case (a youth who was needlessly detained and tortured) were made public.
Withholding the photos of torture.

There is more, but I'm not a lawyer and don't understand it all.

you put it together.

Now I really HAVE seen it all.

I've been here a while and I don't throw that one around much, but this one really floored me. People so blinded by the D that they are willing to defend indefinite detention without due process.

Preventative detention is still unmitigated bullshit that has no place in our country.

We are the United States oF America, damn it.

We don't do that shit.

We detain POWs to prevent them from causing harm. for example.