Constitutional Law

Indefinite Detention With or Without Trial

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On Tuesday the Senate Armed Services Committee held a hearing about the legal treatment of terrorism suspects. The New York Times account emphasizes that Obama administration officials faced resistance from Sen. John McCain (R-Ariz.) and other Republicans on the committee to the idea that people accused of ties to terrorism have a constitutional right to (some sort of) due process. Yet in an exchange with Sen. Mel Martinez (R-Fla.), Defense Department General Counsel Jeh Johnson said the president reserves the right to ignore the outcome of that process (emphasis added):

Martinez: If we are doing Article III [civilian] trials…we then also are talking about closing Guantanamo by the end of the year. There's no way for 220-some-odd people to be prosecuted through some proceeding, whether Article III or military commissions, in that time frame. So where will they then be? I guess they'll be here. And what about those who are acquitted? Where do they go? What happens to them?

Johnson: You're correct. You can't prosecute some significant subset of 229 people before January. So those that we think are prosecutable and should be detained, we will continue to detain, whether it's at Guantanamo or someplace else. The question of what happens if there's an acquittal…I think that as a matter of legal authority, if you have the authority under the laws of war to detain someone…it is true irrespective of what happens on the prosecution side.

Martinez: So therefore the prosecution becomes a moot point?

Johnson: Oh no, I'm not saying that at all. You raised the issue of what happens if there's an acquittal, and in my judgment, as a matter of legal authority…if a review panel has determined this person is a security threat…and should not be released, if for some reason he is not convicted for a lengthy prison sentence, then as a matter of legal authority I think it's our view that we would have the ability to detain him.

So the Obama administration is all for due process, as long as it produces the correct result. Obama already has said that Guantanamo detainees who cannot be successfully tried by military commissions or civilian courts can still be imprisoned indefinitely if they are considered too dangerous to release. Now Johnson is saying that even those who are prosecuted can be kept imprisoned regardless of the verdict. The only point of prosecuting them, it seems, is to create an impression of due process while continuing the Bush detention policies that Obama condemned during the campaign.   

At this hearing and elsewhere, Obama administration officials have expressed a preference for trying terrorism suspects, especially those arrested in the United States, in civilian courts. But in their view that decision is completely at the president's discretion, so in practice the new policy may be indistinguishable from the old policy, under which the Bush administration sometimes kept terrorism suspects in military custody and sometimes in civilian custody, sometimes prosecuted them in military tribunals and sometimes in civilian courts. Also like Bush, Obama is claiming the authority to continue imprisoning defendants who have been acquitted.

Obama may even be retreating on his promise to close Guantanamo by January, his most dramatic departure from Bush's detention policies. Note that Johnson said "we will continue to detain" prisoners who can't be prosecuted by January, "whether it's at Guantanamo or someplace else."

Although missing the deadline would be important symbolically, the location of imprisonment has always been less important than its justification, especially since the Obama administration is laying the groundwork for treating anyone suspected of ties to terrorism, no matter where he is arrested/captured or what his nationality is, as an enemy combatant subject to indefinite detention, whether or not he gets a trial and even if he is acquitted.

You can view Johnson's exchange with Martinez here. Glenn Greenwald has more here. In January I argued that the policy of indefinite detention symbolized by Guantanamo was more important than the prison itself. In February I noted that Obama planned to continue that policy. In May I analyzed his use of martial rhetoric to justify it.

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  1. This is a truly shocking extension of executive authority.

    Its one thing to argue that you can keep someone detained without trial.

    But to argue that you can disregard the results of a trial and keep someone detained after a court has ruled there is no legal basis for doing so . . . .

    Words just fail.

  2. But to argue that you can disregard the results of a trial and keep someone detained after a court has ruled there is no legal basis for doing so . . . .

    I guess but what if we can’t prove in court that they are guilty, but we just know they are?

  3. I think Defense Department General Counsel Jeh Johnson should be arrested, tried and incarcerated for his repugnant, clearly criminal counsel.

  4. “But to argue that you can disregard the results of a trial and keep someone detained after a court has ruled there is no legal basis for doing so . . . .”

    It’s called Reverse Jury Nullification.

  5. Who the fuck would name their kid Jeh?

  6. Justice is an expensive and messy procedure we can’t afford in these dangerous and economically difficult times.

  7. Why isn’t joe here defending the administration?

  8. “Why isn’t joe here defending the administration?”

    He’s too busy tossing my salad.

  9. So, the Administration is planning to extend various due process rights (Miranda rights, rights against hearsay testimony of soldiers, etc.) that traditionally have not been extended to prisoners of war, but then is going to ignore the show trials if they get the wrong verdict?

    Eventually, you have to make a choice, and piss people off. That’s part of being President, and why Presidential Approval Ratings trend downwards.

  10. The demented thing is that most people wouldn’t give a fuck either way – they are teh t3rrarists whether found guilty or not. BO will just get a pass from the vast majority of people. He’s dedicated to keeping us safe don’t you know.

  11. What? No byline on this post? Chicken?

  12. Cantor spokesman Brad Dayspring points to this this report from AFP:

    G8 plans for deep cuts in global greenhouse gas emissions began unravelling on Wednesday shortly after leaders signed on to the deal as Russia rejected a key plank as “unacceptable”. G8 leaders agreed to bear the brunt of steep global cuts in greenhouse gas emissions, calling on a broader bloc of developed countries to reduce pollution by 80 percent by 2050. …

    But the ink was barely dry on the agreement when it ran into Russian opposition. “For us the 80 percent figure is unacceptable and likely unattainable,” said Arkady Dvorkovich, Russian President Dmitry Medvedev’s top economic aide. “We won’t sacrifice economic growth for the sake of emission reduction,” he told reporters.

    Said Dayspring, “When Russian officials find the goals of the Administration, Speaker Pelosi, and House Democrats too far left and not conducive to economic growth, it kinda tells you something.”

  13. Perhaps the Obama should hire a guy like this to ensure the correct results at trial.

    Roland Freisler

  14. Who the fuck would name their kid Jeh?

    Who the fuck would name their kid Barack?

  15. Just so I’ve got this right, correct my mistakes in this scenario:

    1) Jim really pisses the Obamachine off
    2) Obamachine accuses Jim of terrorism
    3) Jim is locked away who knows where
    4) Jim is (eventually) tried and found totally innocent
    5) Jim is locked away who knows where

    End of story

  16. Laddies and Gentlemen, Mr. Pete Townshend

  17. @Warren

    ???

  18. Just so I’ve got this right, correct my mistakes in this scenario

    You misunderstood point 1, which should read “Jim blasphemes the Obamessiah and therefore attacks Hope Itself, showing Jim to be an existential threat to civilization”

  19. The demented thing is that most people wouldn’t give a fuck either way – they are teh t3rrarists whether found guilty or not. BO will just get a pass from the vast majority of people. He’s dedicated to keeping us safe don’t you know.

    No, it’s even more demented than that. A lot of “war on terror” types will excuse this, but on top of that, most of his supporters will too, because they are just asslicking toadies. That he campaigned on reversing this is irrelevant to them.

    It’s actually quite brilliant. The pants-wetters (teh Muslims are going to kill us all!) will like it, and the Obamatrons will ignore it.

    Obama really is a massive piece of shit. joe, it’s so amusing that you don’t have the fucking balls to show up and take your beating.

  20. Cliff,
    I suppose you need Roger Daltrey to spell it out for you. Very well.

    YEAAAAAAAAAAAAAAAAAAAAAAH!

    Meet the new boss!
    Same as the old boss!

  21. That he campaigned on reversing this is irrelevant to them.

    Greenwald says this is what makes Obama worse than Bush. Bush took us to half the country loving the policy and half hating it. The Big O took us from half the country hating it to it being bipartisan consensus everyone supports.

  22. And its not just that he has refused to end indefinite detention without trial.

    He is proposing to extend it to indefinite detention after acquittal.

    Man, I’m hoping that some detainee gets acquitted and detained, so there is a test case on this. As much contempt as I have for SCOTUS, even I can’t believe they would rubberstamp this. No matter how many wise Latinas are on the bench.

  23. RC, I’m not so sure. Even though this policy is in direct contravention to the Fif Amendment, these are strange days we live in.

  24. Just so I’ve got this right, correct my mistakes in this scenario:

    1) Jim really pisses the Obamachine off
    2) Obamachine accuses Jim of terrorism
    3) Jim is locked away who knows where
    4) Jim is (eventually) tried and found totally innocent
    5) Jim is locked away who knows where

    End of story

    I wish to hell you’d pick a different name to use in your example. 🙂

  25. The Big O took us from half the country hating it to it being bipartisan consensus everyone supports.

    It always was, among the parties, if not their -sans.

    Obama’s flip from dishonest opposition to dishonest support could make his party’s -sans realize they’re getting played, and resolve not to be so fucking stupid.

    With about two exceptions, that’s not happening.

  26. I fully expected Obama to take total control of my personal finances as some part of a crusade to make “everyone’s” life better.

    However, I cannot fathom the extreme-beyond-belief measures that he is taking regarding the war on terror.

    John McCain (alive, infirm, or even dead)is looking better each day.

  27. What? No byline on this post?

    I guess I’m not the only one who noticed.

  28. “these are strange days we live in.”

    Thank G-D for guns and ammo.

  29. Episiarch wins.

    I am also a littel obseesed with having joe boyle come here and explain why many of us were so wrong 7-12 months ago. We told him this would happen. Others here told me I was a conspiracy nut and too paranoid. I know there are millions who still think Obama and/or bush are both pretty good, but Joeis one of the worst. He was pretty darn aware of how bad bush was, he recognized many of that administrations lies. He recognized many of the propaganda and lies spewed by the media on behalf of Bush and his cronies, yet when it becomes clear that people like me were 100% right that Obama is going forward witht eh same devilish policies and the MSM is lying and propagandizing for this administration int he exact same way…Joe Boyle just sticks his head in the dirt and stops interacting with the people that he shared many many views with? what is really wrong with the Joe Boyles of the world? what can possibly bring them into reality? Will this type of brainwashing get Darwinized out of existence?

  30. The Obamabots are busy writing on the leftist blogs. You know, articles claiming that the Unitary Executive really is a good idea after all, the Constitution is not a suicide pact, we need “enhanced interrogation” for the ticking time bomb scenario (which is why 24 is such a great show, it proves that torture works!), and if we don’t give the President all the “tools” he wants the result will come in the form of mushroom clouds over American cities.

    And finally, of course, that the two “major” political parties are different.

    It doesn’t take them long to write, they can just cut-n-paste from FreeRepublic.

  31. The next time you see joe, you won’t recognize him. I’m guessing he’ll have a bionic arm and some sort of mask.

  32. Honestly, how much worse could Obama be? Bush sucked ass, but Obama’s policies seem to be about the same on everything important. Where he diverges–in trying to be God of the Economy–he’s even worse. And he seems to be quite inept at foreign policy. Better to be arrogantly nonchalant about world opinion than be seen as wavering and uncertain and curiously attached to interests other than your country’s.

  33. The next time you see joe, you won’t recognize him. I’m guessing he’ll have a bionic arm and some sort of mask.

    He’ll have a Spock-goatee.

  34. Joe, or Joe From Lowell, hangs out over at Unqualified Offerings these days. Go get him.

  35. Honestly, how much worse could Obama be?

    Oh, I think we’re going to find out. It’s pretty amazing that McCain looks sort of good now. I mean, who would have predicted that?

  36. It’s not the joes of the world that bother me. They are open partisans and have one goal–having their fellow travelers control everything. You can’t do anything about them, because they are going to go to their graves with their loyalty stamped on their foreheads.

    It’s the people who aren’t paying attention that are our problem. Core American values–distrust of government, preference for free markets, distaste for corruption, and love of individualism–seem to be fading rapidly. Without a general belief in limited government and free markets, the whole shebang is at risk.

  37. Pro Libertate,

    You bring up troubling, but valid points.

  38. Hey, wake the fuck up. Such legal gymnastics are not alien to the US. Every day in federal courts the law allows defendants who have been convicted of crime A but found not guilty of crime B to be sentenced for crime B in addition to crime A.

  39. kafka – do you have an example? And I would posit that even if you find one, that’s irrelevant to acquittal = detention time anyway on no charges at all.

  40. Wait, we can’t prosecute 220 people in 6 months? Why not? We prosecute thousands of people every day. Most criminal trials are done in under a week. This is absurd.

    In any event, if these prisoners had just been called POWs in the first place, no one would have said anything and they would still be sitting in prison camps without anyone caring.

  41. Without a general belief in limited government and free markets, the whole shebang is at risk.

    I would have agreed with this at some point in the recent past.

    Now, I fear, it is simply too late. There is no longer a general belief in limited government and free markets. It will take a traumatic cataclysm to break the majority away from their simplistic desire to have the Total State take care of all the hard stuff in their lives.

  42. I like how Martinez asks “would that make the prosecution moot?” and Johnson says “nooo, but really yes”.

  43. Hey, wake the fuck up. Such legal gymnastics are not alien to the US. Every day in federal courts the law allows defendants who have been convicted of crime A but found not guilty of crime B to be sentenced for crime B in addition to crime A.

    While that’s true to some extent (though exaggerated more than a bit), there’s nothing out there that would endorse detention for crime A and crime B when a defendant has been acquitted of both.

  44. Now, I fear, it is simply too late. There is no longer a general belief in limited government and free markets. It will take a traumatic cataclysm to break the majority away from their simplistic desire to have the Total State take care of all the hard stuff in their lives.

    We are speeding towards Wolfe time at an alarming and increasing rate. I just have to think about what our mostly departed friend TWC said one time about violent revolution: No matter what happens, people like us will end up on the wrong side of the barricades.

  45. I recall some bigbigslacker posting months ago on the closing of gitmo being nothing but an empty symbolic gesture and being about as intelligent as closing a school because of a shooting. Damn I like being right. Excuse the gloating but it just doesn’t happen that often.

    In fact, closing Guantanamo was worse than an empty gesture – it served to hide the worsening of the previous administration’s policies on detention. Hooray!

  46. “Now, I fear, it is simply too late. There is no longer a general belief in limited government and free markets. It will take a traumatic cataclysm to break the majority away from their simplistic desire to have the Total State take care of all the hard stuff in their lives.”

    Well, the traumatic cataclysm is looking more an more probable, (unavoidable) each day.

  47. As much as it seems the sky is falling, I seriously doubt there will be a traumatic cataclysm. Our economy is extraordinarily tough, as is our society’s capacity to to handle changes. That may not be a good thing–being able to take a vicious beating isn’t necessarily what one might want–but I’d say it’s true.

  48. If the Obama administration tries to enforce this policy, they need to be slapped down hard by the Supreme Court.

  49. In fact, closing Guantanamo was worse than an empty gesture – it served to hide the worsening of the previous administration’s policies on detention. Hooray!

    Lucky you. My prediction hasn’t come true yet. I’m still waiting for us to rendition the keepers so far down the black ops hole nobody will ever know what happened to them.

  50. I’ve said it before, and I’ll say it again.

    Aw, fuck.

  51. Martinez: So therefore the prosecution becomes a moot point?

    Johnson: Oh no, I’m not saying that at all. You raised the issue of what happens if there’s an acquittal…

    Johnson then continued, “The prosecutions won’t be moot, because we assume that most will provide convictions. Those convictions will be very valuable. No, the only thing that might be moot would be any acquittals, should they somehow happen.”

  52. What is troubling here is that we are freely advocating practices that directly violate any precept of the Geneva Convention. We lose all credibility as a human rights advocate when indefinite detention without (or in spite of) due cause is permissible. Further, a case can be made – if this is truly a War on Terror – to the World Court that these are war crimes.

    as to the traumatic cataclysm

    We’ll soon look like . . . . FRANCE! Oh, the horror!

    I too would like to see a reversal to a more libertarian electorate or preferably a viable 3rd party but the end of the Republic is neither unavoidable or imminent.

  53. In any event, if these prisoners had just been called POWs in the first place, no one would have said anything and they would still be sitting in prison camps without anyone caring.

    Yeah, but you can’t shove a spark plug up a prisoner’s ass and bang on it with a ball point hammer if you did that. Damn Geneva Convention.

  54. Closing Gitmo (but moving the detainees elsewhere) and changing from “no trials” to “we’ll only try you if we can convict you, and reserve the right to ignore an acquittal – therefore there will be trials and thus due process” is just replacing Bush’s “I’m the decider” with a better sounding sales pitch for the same policy.

    Covering the same acts with a better lie is a step down, not a step up.

  55. If they have due process, are acquitted, and still detained, how on Earth could the government withstand a writ of habeas corpus?

  56. as to the traumatic cataclysm

    We’ll soon look like . . . . FRANCE! Oh, the horror!

    this is the way the world ends
    this is the way the world ends
    this is the way the world ends

    not with bang, but a whimper

  57. Closing Gitmo (but moving the detainees elsewhere) and changing from “no trials” to “we’ll only try you if we can convict you, and reserve the right to ignore an acquittal – therefore there will be trials and thus due process” is just replacing Bush’s “I’m the decider” with a better sounding sales pitch for the same policy.

    When you see how Obama’s administration closely mirrors the Bush administration, you begin to wonder about who is in the driver seat. Similarly, it is something that seemed obvious to me during the Waco matter that Janet Reno did not have one iota of power to control the agencies that supposedly under our system of government answered to her.

    Why would the Obama administration be so lock step with the Bush on matters like the Eastern European missile defense, taunting Iran, NATO expansion and the like where you would expect them, rightly or wrongly, to take the other course.

    The Obama partisans wont admit it, but he is ineffectual, and lacked the independent center of power before taking office that would have made him a viable player. He is just going along for the ride.

  58. as to the traumatic cataclysm

    We’ll soon look like . . . . FRANCE! Oh, the horror!

    this is the way the world ends
    this is the way the world ends
    this is the way the world ends

    not with bang, but a whimper

    At least the baked goods will be delicious, and the girls a little hairy but quite cute.

  59. I just have to think about what our mostly departed friend TWC said one time about violent revolution: No matter what happens, people like us will end up on the wrong side of the barricades.

    The wrong side is the side with the fewest guns. I’m doing my bit to ensure that my side will have its fair share.

    I too would like to see a reversal to a more libertarian electorate or preferably a viable 3rd party but the end of the Republic is neither unavoidable or imminent.

    I think our Constitutional Republic is either dead or in a permanent vegetative state. The institutions that we have now may have the same names and meet in the same buildings, but at some point they they stopped acting as organs of the Republic described in our Constitution.

  60. I think there should be a distinction made between American citizens held versus foreign nationals held.

  61. I think our economic strength is still there and can withstand some amount of increased waste. What the critical point is that will destroy our economic health is, of course, the $24 trillion question.

    As for our political system, I think there’s still a perception that we operate under Constitutional limits, and an open break with that (Obama: “I’m dissolving Congress”) wouldn’t be tolerated. Unfortunately, the parallels with the Roman Republic’s latter days come to mind. One thing that was characteristic of that period (and of the early Empire as well) was the breakdown of constitutional offices and functions and the facade of constitutionality that hid the reality of extraconstitutional actions.

  62. “Perhaps the Obama should hire a guy like this to ensure the correct results at trial.

    Roland Friesler”

    I guess it was inevitable that someone compared Obama to Hitler. It still doesn’t make it any less retarded.

  63. “In any event, if these prisoners had just been called POWs in the first place…”

    But that is the root of the fucking problem. They aren’t POWs and never were. There is no treaty that affords POW rights to terrorists who follow no conventional rules of war and wear no uniforms. Claiming that these individuals should have access to American courts and should be protected by the United States Constitution, something that not even POWs get, is ludicrous, in the extreme. The thought of Mirandizing al Qaeda and Taliban in Afghanistan would piss off most people, right after they got done laughing, except for the ones that are too busy assuming their “I am more libertarian than thou” airs.

  64. I think there should be a distinction made between American citizens held versus foreign nationals held.

    Right Right! Because people born in this country have an inalienable human right to due process, just cause, and fair trials, while those born on the other side o’ the line shoulda known better.

  65. oh, B, there’s also no cause for declaring war against non-nations, either. If you’re going to declare war, then you’ve made them POWs by definition. Your Sean Hannity-schtick is wearing thin.

    If the war is a “war on terror”, then the terrorists are the other fucking side, and you have to comply with the convention against the other side. In other wars of nation-state v. nation-state, the clause about nonuniformed irregulars was put in to ensure that partisans weren’t out committing atrocities during a “proper” war. But it’s our doing that we declared a War on a Tactic in the first place.

  66. anyway, long story short: you either have a war and follow the rules, or you have a police action and follow the rules. The Bush Administration wanted a police-action, but wanted to follow “war rules”.

    no.

  67. B,

    The fact that they are not entitled to be POWs would not have stopped us from treating them that way. Indeed, to do so would have put us on the moral high ground, and would have given us a viable answer to queries about their status(“can’t send them home until hostilities really have ended…”) and a clear endgame.

    We damn sure should have treated them as such while we worked out their individual situations. Then some could have be sent home, other transferred to criminal custody, and the rest held pending the end of hostilities.

    Repeat until it sticks: “I order to be the good guys, you have to be the good guys.”

  68. Seriously though, that kind of opinion fucking disgusts me.

    The Bill of Rights and Geneva Convention are not merely agreements not to torture certain kinds of people wearing certain clothes in certain situations. They are expressions of the belief that people (regardless of where they are born or what crimes that have committed) are entitled to fair treatment and public trials.

    Who cares if if they’re citizens? What does it matter how we refer to them? They are people, and that is why they deserve respect.

  69. Much as I hate to say it but we have “deprived” these poor souls of their rights under the Geneva convention to obtain intelligence. In this case, most of the people in GITMA are unauthorized combatants. As such, they are “entitled” to a court martial and immediate execution. George W deprived these people of their execution.

  70. This is a separate issue from the one of whether the “terrorists” should have trials at all. If the government puts anybody on trial, they should be put on trial and not on “trial”. Maybe the government would like to put gun owners who have expressed “liberty tree” sayings on “trial” some day.

  71. Jerry, read the previous posts and remove your head from your ass, please.

  72. If you’re going to declare war, then you’ve made them POWs by definition.

    No, you haven’t.

    Geneva defines POWs very specifically, and makes it clear that fighters who don’t meet that definition don’t get POW status.

    The Bill of Rights and Geneva Convention are not merely agreements not to torture certain kinds of people wearing certain clothes in certain situations. They are expressions of the belief that people (regardless of where they are born or what crimes that have committed) are entitled to fair treatment and public trials.

    That’s a little overbroad. Neither the BOR nor Geneva provides for trials for true POWs, for example. The BOR has never been applied, not once, to a foreign battlefield, or to the actions of the US military in prosecuting a war. Geneva is quite clear that you have to meet its definition of a POW to get the protections afforded POWs.

    Personally, I go with the drumhead court martial for these guys. They aren’t really POWs, so they don’t get the panoply of rights that POWs get. What they are, or at least are accused of being, is war criminals. They are in the custody and under the jurisdiction of the military.

    A timely, on the spot, hearing to determine whether there is good reason to believe they are terrorists is the way to go. If they aren’t, then they are released. If they are, then they get a choice: a bullet, or cooperate with our inquiries.

  73. R C Dean – pleeeease. Are you telling me that the United States declared war, but nobody can be a Prisoner of that War? Now, had we declared actually War against the nation of Afghanistan, I might be inclined to agree with you, but we declared a “War on Terror” – thereby making terrorists the regulars in the Army of Terror. Like it or lump it.

    And you cannot shoot people in the face once you’ve captured them. Come on, are we civilized or what?

  74. RC,

    What I suppose I am failing to grasp here is why you think people born on the other side of some arbitrary border aren’t entitled to the same protections as people born on this side. Isn’t the Constitution expressly written as a document to limit the powers of the Federal government?

    Take your time to answer. I know it can be hard to see the forest with all of those trees in the way.

  75. amend that last post to read:

    “RC, et. al,”

  76. Ah yes – I am basking in the “change” I can believe in under Obama…

    I think The Who said it best: “Meet the new boss…same as the old boss!”

  77. episiarch said; **It’s pretty amazing that McCain looks sort of good now. I mean, who would have predicted that?**

    Just slightly less than half the country.

  78. People are still being surprised by this?

    The man has a plan, has had a plan, and will realize his plan. I think he’s far smarter and conniving than anyone gives him credit for, even here. I’m really beginning to enjoy people defending him. It will be the inverse of Bush in no time at all. The tards that voted him will be throwing out dipshit defenses of BO like conservatives did for Bush.

  79. RC Dean,

    Just curious, what uniform does the other side on the War on Terror have to wear to be considered POWs?

    Not to mention that most of the Gitmo detainees were NOT captured by US forces on any battlefield. They were handed over on the word of an Afghan warlord or some similarly “reliable” source.

  80. And if he is willing to do this to people who basically share his and Michelle’s positions on America’s many crimes, just wait until Comrade Obama turns his fire on the true enemies of the Revolution: the kulaks, the landed gentry in their mcmansions, the money-grubbing physicians, and the other backsliding, counter-Revolutionary traitors to the planet.

  81. “If they have due process, are acquitted, and still detained, how on Earth could the government withstand a writ of habeas corpus?”

    Syd, I’ll let President Jackson answer that:

    “The Justices have made their decision; now let them enforce it.”

  82. Obama already has said that Guantanamo detainees who cannot be successfully tried by military commissions or civilian courts can still be imprisoned indefinitely if they are considered too dangerous to release.

    First of all, I oppose the indefinite detentions and hope they stop. Second, I would like to point out that proving someone is a “danger to himself or others” is enough in NJ to detain someone in a mental institution until he can prove that he is no longer dangerous. The outcome of this year’s Supreme Court case about forced post prison stays in mental institutions for child molesters could have ramifications for “enemy combatants”.

  83. #

    Comment by joe from Lowell –
    June 27, 2009 @ 4:57 pm

    Seen this?

    We’re ending poppy eradication efforts in Afghanistan.

    Meet the new?uh?.uh?

    #

    Comment by joe from Lowell –
    June 29, 2009 @ 10:09 am

    Bad joe!

    Not allowed to post good news!

    Cuz?you know?Democrats and stuff.

    Soooooooooooooooooooooooo boring.

    #

    Comment by joe from Lowell –
    June 29, 2009 @ 10:15 am

    I realize actual condemnation is probably
    asking a bit much, though.

    I like to wait until there’s an actual story to comment on.

    You didn’t learn a damn thing from the premature hyperventilating about the torture memos that Obama was never going to release, did you?

    #

    Comment by joe from Lowell –
    June 29, 2009 @ 1:03 pm

    The speech at the National Archives a couple months ago was a story?a couple months ago. I remember commenting on it at the time.

    These leaks about the Obama administration considering continued detention for the hardest cases in Guantanamo – the people against whom there is solid evidence of guilt for terrorist crimes, that can’t be admitted in our criminal court system because of the “fruit of the poison tree” doctrine – is not a story, since we’ve known about that for months. Did you forget the thread about “POW status?” If there’s a proposal or a policy released, that will be a story.

    ?and I’ll re-raise

    Re-raise? How sad for you that you think of things this way. What is this supposed to mean, anyway: it’s ok for you to spout off before you have enough evidence to go on, because Obama did something bad?

    Try to get this through your thick skull: there are actual issues and problems in the world. Proving how totally right you are, singing Who songs, and trying to save face against some guy you’ve never met on a blog comment thread need to play less of a role in your political thought.

    #

    Comment by joe from Lowell –
    June 29, 2009 @ 5:21 pm

    joe, if you want a thought experiment, ask yourself this: what would Obama do if Jose Padilla is released during his term?

    By a court? After being tried?

    Can you name any terrorism suspects who were detained after being acquitted in court?
    #

    Comment by joe from Lowell –
    June 29, 2009 @ 5:21 pm

    Shorter Eric:

    THAT’S NOT THE PARTY LINE!

    Sorry to intrude on your little world with news about a subject you used to pretend to be interested in.
    #

    Comment by joe from Lowell –
    June 29, 2009 @ 5:22 pm

    I trust Eric is now off to berate Jim Henley for blogging the story.

    Not.
    #

    Comment by joe from Lowell –
    June 29, 2009 @ 5:53 pm

    Yeah, why don’t you defeatist guys at this blog ever tell the GOOD news that’s coming out of D.C.?

    Jim did, upthread. You don’t seem to have a problem when he does it.
    #

    Comment by joe from Lowell –
    June 29, 2009 @ 7:04 pm

    It’s supposed to mean that those who criticize Obama’s commitment to undoing some of previous administration’s worst excesses in the area of executive power are right to be suspicious

    So the thought process is?I’m suspicious of Obama’s commitment to civil liberties, so I object to your story about ending poppy eradication.

    Hokay, d00d.

  84. Geneva defines POWs very specifically, and makes it clear that fighters who don’t meet that definition don’t get POW status.

    Geneva also defines what happens if you don’t get POW status. If you don’t, and you were captured in an area under military administration, you are subject to military justice. If you are captured in an area under civilian jurisdiction, you are subject to the civilian judicial system in that jurisdiction.

    So the question becomes: Would the Uniform Code of Military Justice permit the treatment that the detainees have received, or not?

    If not, then we’ve violated the Geneva Convention even if these guys are guilty of being illegal combatants.

  85. What I suppose I am failing to grasp here is why you think people born on the other side of some arbitrary border aren’t entitled to the same protections as people born on this side. Isn’t the Constitution expressly written as a document to limit the powers of the Federal government?

    Ah, so you think that the Posse Comitatus Act is a mistake, Hugh Akston? The Constitution pretty expressly authorizes the existence of a military and waging wars. So if you think that there’s no difference between inside the artificial border and out, then you must think it’s possible for the “War on Drugs” to allow military units to be used within the US. I’m pretty certain that I don’t think that the rules of war, such that they are, should be applied to civilians.

    Just curious, what uniform does the other side on the War on Terror have to wear to be considered POWs?

    Something that doesn’t involve hiding within the civilian population, taking civilians as hostages, or wearing captured uniforms of the other side. The Geneva Convention does provide some basic protections for those who don’t qualify as POWs, as it should.

    Also, RC Dean is correct, if you read the Geneva Convention, it actually violates the Convention to put POWs on trial for acts of warfare. They must be held until the end of the war or prisoner exchanges in internment camps indefinitely. The underlying idea is that they’re not really guilty of anything if they’re just ordinary soldiers in wartime. The only people who can be put to trial are unlawful combatants or those who have committed war crimes.

    That doesn’t mean that they don’t deserve some level of protection, though. But they aren’t POWs. Unless you favor indefinite detention forever, since we don’t have a foreseeable end to this, negotiations, or prisoner exchanges.

    And you cannot shoot people in the face once you’ve captured them. Come on, are we civilized or what?

    Right, so we’ll just shoot people in the face before capturing them, and there’s apparently no issue with that, as far as I can tell.

    Oh, I think we’re going to find out. It’s pretty amazing that McCain looks sort of good now. I mean, who would have predicted that?

    It’s not amazing at all. It was pretty apparent before the election that McCain, as flawed and not philosophically grounded as he was, was actually pretty predictable through his record and not all that bad for libertarians. (Heck, several, though certainly not all, of the things conservatives dislike about McCain are him being too libertarian, whether it comes to opposing weapons programs, a Constitutional amendment to ban gay marriage, etc.) Obama was certainly more of a wild card, given his habit of saying all things to all people.

  86. > As much as it seems the sky is falling, I seriously doubt there will be a traumatic cataclysm. Our economy is extraordinarily tough, as is our society’s capacity to to handle changes.

    Society’s capacity to handle changes is part of the scariness, though.

  87. I’ve been commenting here for a long time with joe, and he’s at least a casual reader of Urkobold, so I won’t say anything personally against him, but he’s usually full of crap when it comes to defending the Democratic Party. He’s certainly a fan of all the best argumentative fallacies, too, but he’s well aware of that.

    Partisans! Washington was right about that.

  88. Ah, so you think that the Posse Comitatus Act is a mistake, Hugh Akston? The Constitution pretty expressly authorizes the existence of a military and waging wars. So if you think that there’s no difference between inside the artificial border and out, then you must think it’s possible for the “War on Drugs” to allow military units to be used within the US. I’m pretty certain that I don’t think that the rules of war, such that they are, should be applied to civilians

    That straw man didn’t put up much of a fight, did he John?

    Since you didn’t seem to read the second sentence of my post, I will copy & paste for your convenience:

    Isn’t the Constitution expressly written as a document to limit the powers of the Federal government?

    Specifically, I refer to the government’s interest in and power to detain and disappear people for any reason or no reason.

    If you take a good, hard look at the Fifth Amendment, you will see no reference to where a defendant was born or of what nation he is a citizen. the word used is “person.”

    And before you say it, the exception clauses appear to apply only to the grand jury requirement, not to that of due process. Even then, there has been no formal declaration of War, and there is still the burden of proving a “public danger” presented by detainees.

  89. Oh, I think we’re going to find out. It’s pretty amazing that McCain looks sort of good now. I mean, who would have predicted that?

    Memememememememememememememememememememememememememememememememe
    memememememememememememememememememememememememememememememememe

    And honestly, I’m surprised that you’re surprised. In most matters discussed around here, you’re way smarter than me.

  90. I wrote on this issue on my blog today “Bicker, Back & Forth, PS.” thank you for the hearing transcript notes.

    http://darylrodrigues.com/wordpress/?p=534

  91. Right Right! Because people born in this country have an inalienable human right to due process, just cause, and fair trials, while those born on the other side o’ the line shoulda known better.

    That is the traditional view.

    Does the First Amendment protect people in Iran or Saudi Arabia?

    The thought of Mirandizing al Qaeda and Taliban in Afghanistan would piss off most people, right after they got done laughing, except for the ones that are too busy assuming their “I am more libertarian than thou” airs.

    we have allies in Afghanistan, Iraq, and Israel. They could be tried there.

  92. legislation quietly making its way through Congress would give the White House power to categorize political opponents as hate groups and even send Americans to detention centers on abandoned military bases.

    Rep. Alcee Hastings – the impeached Florida judge Nancy Pelosi tried to install as chairman of the House Intelligence Committee until her own party members rebelled – introduced an amendment to the defense authorization bill that gives Attorney General Eric Holder sole discretion to label groups that oppose government policy on guns, abortion, immigration, states’ rights, or a host of other issues. In a June 25 speech on the House floor, Rep. Trent Franks, R-AZ, blasted the idea: “This sounds an alarm for many of us because of the recent shocking and offensive report released by the Department of Homeland Security which labeled, arguably, a majority of Americans as ‘extremists.'”

  93. “R C Dean | July 9, 2009, 12:31pm | #

    Words just fail.”

    No they don’t, but but the words are “dictatorship in the style of Stalin, Hitler, Mao, Castro, etc”. Sadly, people are so stupid, they don’t realize they are trading their liberties for a bucket full of smoke. Reference Florida Congressman Alcee Hastings recent proposed legislation to set up camps for those who oppose government intrusion, people like Christians, pro-lifers, tax-protesters, weapons ownrs etc.

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