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Posted at 1:58 PM ET, 12/22/2010

Obama's indefinite detention policy: A more humane version of Bush

By Adam Serwer

Yesterday, the Obama administration indicated to reporters that long-awaited action codifying the Bush-era policy of indefinite detention for suspected terrorists would be put in place through executive order.

So how bad is this? It's both very bad and an improvement over the status quo--and a significant improvement from the detention review policies the Bush administration put in place. Here's a rundown.

The Obama administration proposal differs from the Bush administration detention review process in that it would be more adversarial -- detainees would be represented by a lawyer, and the boards would be made up of more than just military officials. The process would be, as the New York Times' Charlie Savage describes it, basically a kind of "parole board" for suspected terrorists.

Laura Murphy of the ACLU told Peter Finn and Anne Kornblut that the changes amount to "a few due-process baubles" and that "our Constitution requires that we charge and prosecute people who are accused of crimes." 

The use of indefinite military detention in armed conflict is well-established, but it's not clear whether those who would be detained under this policy are actually "battlefield captures," or whether military detention is a mere smokescreen for holding people indefinitely who should be charged with a crime or released. Complicating this is the reality that the fight with Al Qaeda has no defined endpoint.

"Indefinite military detention should not be used as a substitute for criminal prosecution for suspected terrorists operating outside the theater of war," says David Frakt, a Barry University law professor and an Air Force Judge Advocate General Lieutenant Colonel, who previously served as lead defense council with the Office of Military Commissions. Frakt concedes that introducing detainee lawyers into the process was an important step. "Plotting terrorist attacks against civilian targets is first and foremost a criminal matter, not a military one."

Not everyone on the left is down on the proposal. Ken Gude of the Center for American Progress says the changes "not only go well beyond the Bush process, but [include] significantly more process than is required by the Geneva Conventions."

He adds that the proposal was imperfect, but he calls it "a genuine effort to establish a workable system out of the chaos of the Bush era that protects both the security of the American people and the rights of those detained at Guantanamo."

The administration could argue that by doing this by executive order, it's avoiding more constraints on detainee rights that would likely be the result of going through a Republican Congress. An executive order also means indefinite detention isn't a "permanent" fixture of American law. And the proposal in effect establishes a process for asserting detention powers already given to the executive branch by the 2001 Authorization to Use Military Force. Centrist Brookings Scholar Ben Wittes writes that Obama is getting "in touch with his inner Dick Cheney" by not going through Congress. But some on the left say that's a feature, not a bug. 

If the administration tried to get an indefinite detention law, according to Georgetown law professor David Cole, it would be "creating a whole new legal regime that might not be limited to wartime and would wreak an unprecedented change in the way we've always gone about justice." In doing so, the administration could "introduce into peacetime law a very dangerous principle, detention not based on what someone has done, but what they might do in the future." 

As University of Texas law professor Robert Chesney puts it, an executive order "doesn't have staying power if the next administration doesn't want it." The danger, of course, comes from the fact that the fight against al-Qaeda may be essentially endless, and it's hard to remember the last time any president willingly ceded executive power.

Another question is whether or not the proposal would apply merely to the Bush administration "legacy cases" at Guantanamo, which include individuals difficult to try in either military or civilian forums because of their abuse at the hands of the Bush administration, or future cases as well. While this proposal makes indefinite detention officially part of the Obama administration's national security policy, it also provides a ray of hope for those detainees who have lost their habeas cases, and, as a result, are being held indefinitely with little hope of release.

The White House's indefinite detention proposal is basically what we've come to expect from the Obama administration on national security and civil liberties. Having promised to reverse the trajectory of Bush-era national security policies, the Obama administration has settled on merely making them marginally more lawful and humane. It's not nothing, but it's not what Obama promised -- or what much of the left was hoping for.

Adam Serwer is a staff writer at The American Prospect, where he writes his own blog.

By Adam Serwer  | December 22, 2010; 1:58 PM ET
Categories:  Foreign policy and national security  
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Comments

The danger, of course, comes from the fact that the fight against terrorists has been and will remain endless.

There I spruced it up a little bit, hope you don't mind.

Posted by: shrink2 | December 22, 2010 2:08 PM | Report abuse

Adam Serwer writes
"It's not nothing, but it's not what Obama promised -- or what much of the left was hoping for."

I couldn't find any promises in the Reuters article to which Mr Serwer links.
Then-Senator Obama did criticize the Bush admin's policy of indefinite detention, but the closest thing to a promise I can find is:

"I'm looking forward to having a robust argument about these situations," [Obama] said. "I don't shy away from it. The way these issues have been framed have done a great disservice to America."

Where's the alleged broken promise?

Posted by: bsimon1 | December 22, 2010 2:12 PM | Report abuse

On the back of my trusty old Peter DeFazio special, there is a sticker on one side that reads, "Fight Terror with Justice!" on the other side, there is a UNICEF sticker. Yeah, I get flipped off from time to time, doesn't bother me.

Posted by: shrink2 | December 22, 2010 2:13 PM | Report abuse

It is just amazing how concerned Mr Serwer is for detainee rights. the world turned upside down.

The concern about indefinite detention is really very amusing. I wonder if the FDR administration was worried about indefinite detention the POWs during the second world war. I doubt anyone believed that the war would go on forever, but I also doubt that anyone knew how much longer hositilities would last. Should we have started repatriation proceedings on POW that had been detained for more than oh say two years? Three? What if the V bombs actually prolonged the war, who would be concerned about "indefinite detention" then? Just amazing.

this is the second time today that the left is forced to put lipstick on a pig. My guess is that liberals will get very good at that.

Of course no liberal screed about Gitmo would be complete without a swipe at Mr Bush, but, son of a gun, here we are finding ways to indefinitely detain those nice, misunderstood Islamic thugs. Just like Bush did.

so, how many of the reviled Bush approachs has Mr Obama now retained? Has the Patriot act been repealed? Anybody here have their library borrowings checked by homeland security lately?

If this weren't so pathetic, it would be humorous. It must just stink to be a liberal and realize that all that psuedo moral preening was just empty rhetoric now that the reality check is complete.

Posted by: skipsailing28 | December 22, 2010 2:41 PM | Report abuse

well since this is a dead thread, what just happened to Microsoft stock?

Posted by: shrink2 | December 22, 2010 2:54 PM | Report abuse

...lipstick on a pig. My guess is that liberals will get very good at that....

I'm no good at that, but can I practice on Haley Barbour?

Posted by: shrink2 | December 22, 2010 2:57 PM | Report abuse

"Where's the alleged broken promise?"

It's on his own website: As President, I will close Guantanamo, reject the Military Commissions Act and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.

http://www.barackobama.com/2007/08/01/the_war_we_need_to_win.php

Posted by: NoVAHockey | December 22, 2010 3:00 PM | Report abuse

"Laura Murphy of the ACLU told Peter Finn and Anne Kornblut that the changes amount to "a few due-process baubles" and that "our Constitution requires that we charge and prosecute people who are accused of crimes."

I believe the point of this is that these detainees aren't being accused of crimes, but rather are claimed to be belligerents in an ongoing armed conflict/war with the United States.

Basically, this looks like codifying the recommendations made by Jack Goldsmith.

http://www.washingtonpost.com/wp-dyn/content/article/2010/11/18/AR2010111805020.html

Posted by: jnc4p | December 22, 2010 3:07 PM | Report abuse

NoVaHockey, I'll give you Gitmo closure as a promise that hasn't yet been kept, though I blame Congress's obtuse refusal to fund the Admin's closure plan.

More specifically, my beef was primariy with Serwer who linked to an article that he stated included promises from candidate Obama. I didn't see the promises in that article.

As far whether the proposed rules adhere to our Constitution, the Geneva Conventions & the UCMJ, it seems like they do; or at least they do moreso than the prior admin's rules.

Posted by: bsimon1 | December 22, 2010 3:11 PM | Report abuse

it is true that repulicans have so very much experience at the application of lipstick on pigs -- elevated it to an art form.

Posted by: fiona5 | December 22, 2010 3:12 PM | Report abuse

NEW START RATIFIED


"President Obama became the first Democratic President in history today to have an arms-control treaty ratified on his watch. The New START Treaty was approved in the Senate by a vote of 71-26. Thirteen Republicans, a quarter of the Republican caucus, broke with Minority Leader Mitch McConnell (R-KY) and Sen. Jon Kyl (R-AZ). This is the first time an arms control treaty has ever passed without the support of the minority leader. As Sen. John Kerry (D-MA) said yesterday, “In today’s Senate, 70 votes is yesterday’s 90."

My, my the wingers must be having yet another really bad day...

Posted by: fiona5 | December 22, 2010 3:14 PM | Report abuse

The other recommendations by Mr. Goldsmith make good sense too:

http://www.washingtonpost.com/wp-dyn/content/article/2010/09/09/AR2010090905238.html

http://www.washingtonpost.com/wp-dyn/content/article/2009/11/19/AR2009111903470.html

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/29/AR2009052902989.html

Posted by: jnc4p | December 22, 2010 3:14 PM | Report abuse

fiona, me dear, take a lesson from shrink2. At least his snide comments have a bit of cleverness to them.

Posted by: skipsailing28 | December 22, 2010 3:24 PM | Report abuse

...unlike yours.

Posted by: fiona5 | December 22, 2010 3:35 PM | Report abuse

bsimon1 -

here's candidate obama: "What I have also said is this: that when you suspend habeas corpus -- which has been a principle, dating before even our country, it’s the foundation of Anglo-American law -- which says, very simply, if the government grabs you, then you have the right to at least ask, 'Why was I grabbed?' and say, 'Maybe you’ve got the wrong person.' "The reason you have that safeguard," he said, "is because we don't always have the right person. We don’t always catch the right person. We may think this is Mohammed the terrorist, it might be Mohammed the cab driver. You may think it’s Barack the bomb thrower, but it might be Barack the guy running for president. "The reason that you have this principle is not to be soft on terrorism, it’s because that’s who we are," Obama said as the crowd rose to its feet, applauding. "That’s what we’re protecting. Don’t mock the Constitution! Don’t make fun of it! Don’t suggest that it’s un-American to abide by what the founding fathers set up! It’s worked pretty well for over 200 years!

http://blogs.abcnews.com/politicalpunch/2008/09/obama-on-the-ne.html


Not exactly the same message in today's announcement. I put a premium on civil liberties. I often hear the argument that Democrats are so much better in this area than Republicans. It's not true. They are both equally worthless.

Posted by: NoVAHockey | December 22, 2010 3:37 PM | Report abuse

skip, joking aside, the problem with Gitmo is that is exists.

If you create something like that, it had better be for a purpose that you know for certain, is absolutely necessary and absolutely temporary. There have always been terrorists or non-conforming combatants whatever they get called by the legals of the day. There always will be.

The Republicans gave Gitmo as their special gift to the American people, to our history, another burden our Constitution has to bear.

When Republicans laugh at Obama's struggles trying to undo the damage you did, well, you can just imagine how we really feel.


Posted by: shrink2 | December 22, 2010 3:39 PM | Report abuse

Tick, tick, tick, tick.......

The clock is about to run out on the most despised, lame duck session in history.

Tick, tick, tick.....

They are about to become Obama's dead ducks.

We can finally realize the results of November. The almost, total wipeout of the Obamanation.

America rejoices!

Posted by: battleground51 | December 22, 2010 3:41 PM | Report abuse

I put a premium on civil liberties too. that's why I have no problem with the guys at gitmo staying in gitmo.

none.

Posted by: skipsailing28 | December 22, 2010 3:47 PM | Report abuse

"...almost, total..."

Count much? The House matters, but you Republicans know only the White House really matters to Republicans, flying around in the helicopter, looking Putin in the eye and bungling being Ronald Reagan (not to mention Musharraf)...you get the SCOTUS appointments, ground zero for your culture war. So whom will you run? You have two dogs, Romney, or Palin?

Posted by: shrink2 | December 22, 2010 3:49 PM | Report abuse

President Obama will hold a news conference at 4.15PM today.

Will the TV networks carry it, or will they be too busy covering more important events..

I am so glad that all that silly stuff about the START Treaty, Repealing DADT, and providing care for 9/11 First Responders is out of the way.

Now the Main Stream TV Media can devote 100% of their time, instead of their usual 90% of their time, to keeping us informed, at all times, about every time Lindsey Lohan or any member of the British Royal Parasites, passes gas.

How are the people in the camps, in Haiti and Darfur doing? What is happening inside Burma? Have all the Christians been driven out of George Bush's post invasion Iraqi Paradise?

Never mind, says The Main Stream Mediaocrity: let us tell you about Loco Lohan, and The Royal engagements, and what will the brides wear, and does The Queen really like Kate, and.........

Posted by: Liam-still | December 22, 2010 3:57 PM | Report abuse

but shrink2, I don't see any problem with gitmo from a constitutional POV. The liberals ginned this up in their haste to tar Bush. I know that the left today is aghast that the republicans would seek to deny Obama anything, but this is a perfect example of the same dynamic from the left

To many of us on the right the entire issue with Gitmo appears to be nothing more than a trade off. The left wanted to damage Bush so badly that they convinced themselves that giving constitutional rights to people whose goal it is to kill us and enslave the survivors made sense.

I don't feel any strain or stain. These folks are nasty and ugly. As proof, look at the fact that Obama couldn't cajole many other countries into taking them off our hands. Further, a significant percentage of them that were released returned to active jihad against us. How many times should a given muslim be allowed to take aim at our soldiers?

I'm not laughing at Obama because he's somehow failed to bring "justice" to these thugs. I'm amused because he, and his leftist camp followers, painted themselves into a corner.

I firmly recall Bush stating that he didn't much like Gitmo either but no other solution was available. In their hubris the left called him a liar. Now they must eat those words. Hubris pure and simple.

Posted by: skipsailing28 | December 22, 2010 3:57 PM | Report abuse

Link to C-span live coverage of President's Press Conference, which will start in about five minutes.

http://www.c-span.org/Events/President-to-hold-News-Conference/10737418476-1/

Posted by: Liam-still | December 22, 2010 4:10 PM | Report abuse

@shrink2 "skip, joking aside, the problem with Gitmo is that is exists.

If you create something like that, it had better be for a purpose that you know for certain, is absolutely necessary and absolutely temporary. There have always been terrorists or non-conforming combatants whatever they get called by the legals of the day. There always will be.

The Republicans gave Gitmo as their special gift to the American people, to our history, another burden our Constitution has to bear.

When Republicans laugh at Obama's struggles trying to undo the damage you did, well, you can just imagine how we really feel. "

Getting rid of Guantanamo doesn't make the problem go away. It's just a symbol. The bipartisan consensus now seems to be that instead of detaining terrorists without due process, we'll assassinate them. I find it odd that there is more progressive/liberal opposition to detaining terrorist suspects than there is to killing them outright.

"The revelation last weekend that the United States is increasingly using foreign intelligence services to capture, interrogate and detain terrorist suspects points up an uncomfortable truth about the war against Islamist terrorists. Demands to raise legal standards for terrorist suspects in one arena often lead to compensating tactics in another arena that leave suspects (and, sometimes, innocent civilians) worse off."

"But closing Guantanamo or bringing American justice there does not end the problem of terrorist detention. It simply causes the government to address the problem in different ways. A little-noticed consequence of elevating standards at Guantanamo is that the government has sent very few terrorist suspects there in recent years. Instead, it holds more terrorists -- without charge or trial, without habeas rights, and with less public scrutiny -- at Bagram Air Base in Afghanistan. Or it renders them to countries where interrogation and incarceration standards are often even lower.

The cat-and-mouse game does not end there. As detentions at Bagram and traditional renditions have come under increasing legal and political scrutiny, the Bush and Obama administrations have relied more on other tactics. They have secured foreign intelligence services to do all the work -- capture, incarceration and interrogation -- for all but the highest-level detainees. And they have increasingly employed targeted killings, a tactic that eliminates the need to interrogate or incarcerate terrorists but at the cost of killing or maiming suspected terrorists and innocent civilians alike without notice or due process."

The Detainee Shell Game

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/29/AR2009052902989.html

Posted by: jnc4p | December 22, 2010 4:12 PM | Report abuse

EXTREMELY disrespectful of elections and like kicking dirt in the faces of the America People to run a lame duck session like this.

.

Posted by: RainForestRising | December 22, 2010 4:16 PM | Report abuse

Good idea for Obama to get ahead of this busy day and set the tone.

Lets see what kind of cheap shot questions Chip throws out there about Obama undercutting his own message on some trumped up meme he's hoping will be talked about on Sunday talk shows.

Posted by: mikefromArlington | December 22, 2010 4:17 PM | Report abuse

All, check out this new poll showing clearly that Obama won the lame duck session:

http://voices.washingtonpost.com/plum-line/2010/12/obama_won_the_lame_duck_sessio.html

Posted by: Greg Sargent | December 22, 2010 4:18 PM | Report abuse

NoVaHockey, from the wapost article in the first link, above:

"An administration task force ultimately determined that at least 48 detainees were too dangerous to release but could not be put on trial. Officials have said the evidence against these detainees has been tainted by torture or cannot be used in court because it is classified or would not meet legal standards."

This 'indefinite detention' policy is designed to deal with those ~48 prisoners. The challenge faced by the Obama admin is how do you 1) act according to our principles, i.e. the constitution, habeus corpus, treaty obligations, etc; while 2) fulfilling the obligation to keep us safe and 3) dealing with the mess left by the prior administration that did not always follow point 1, above while pursuing point 2. So, on the positive side, we're apparently not creating additional detainees in this category (too dangerous to release, but unable to prosecute due to torture, shoddy evidence, etc). This order will allow for this category of detainees to ask the habeus corpus question - the "why am I being held?" question. This so-called 'parole board' is there to review the Gov'ts claims that the detainees do actually meet the criteria for indefinite detention: too dangerous to release, and unprosecutable for one or more reasons. I'm not sure how you establish a better system; the alternatives seem to be: 1) let them go; or 2) hold a trial that will presumably end in them being set free because they were tortured or the Gov't was otherwise limited from making their case.

Posted by: bsimon1 | December 22, 2010 4:20 PM | Report abuse

"They have secured foreign intelligence services to do all the work -- capture, incarceration and interrogation -- for all but the highest-level detainees. And they have increasingly employed targeted killings, a tactic that eliminates the need to interrogate or incarcerate terrorists but at the cost of killing or maiming suspected terrorists and innocent civilians alike without notice or due process."

Yes, obviously. This is how it has always been done, another topic altogether, extra-judicial killing I mean. Undeclared war, assassins, all that has gone on since killing began. I am saying, you don't just one day decide to set up and operate a concentration camp for people of no particular legal status (not POWs, etc.) having no clue what you are going to do with them after you decide they can never leave.

Posted by: shrink2 | December 22, 2010 4:32 PM | Report abuse

I can answer the terrorist question quit easily:
Jihad madman: Why am I being held?
us: It is the will of your god.

How simple can it be?

I love the part about acting according to our principles. What that really says is "acting according the the liberal interpretation of our principles". Hence the debate about what to do with these guys. And I think the points made by jnc4p are right on. The more the left creates faux righteousness about the bad guys being held at gitmo the more other options, some even less palatable to the tender feelings of the left, will be utilized.

The bottom line on this is something that the liberals would rather die than admit: Bush was right.

Posted by: skipsailing28 | December 22, 2010 4:33 PM | Report abuse

"An administration task force ultimately determined that at least 48 detainees were too dangerous to release but could not be put on trial."

I flat out reject that. The idea that a government panel can decide for itself, who is or is not eligible for trail, makes a joke of our entire system. What's stopping them from expanding this to anybody else -- because they promise not to?

Posted by: NoVAHockey | December 22, 2010 4:45 PM | Report abuse

Bush was right, I'll admit that, I'd rather live than deny Bush a place on the right hand on Dick Cheney and his Justice Department.

Palin thinks he is just some blue blooded RINO, but she is unspeakably ineffable, as a judge of other people I mean.

As for gitmo, just another dangerous, stupid Republican mistake. But we'll work through it. Trust us, Democrats loves us some lawyers. Better than having them chase ambulances. "Have you or anyone you know ever been injured by any drug or medical device, advice, procedure, nursing home staff or anything even remotely associated with a(n insured) medical service provider?"

Posted by: shrink2 | December 22, 2010 4:45 PM | Report abuse

I reject gitmo.

"What's stopping them from expanding this to anybody else -- because they promise not to?"

Posted by: shrink2 | December 22, 2010 4:47 PM | Report abuse

Yeah, the lawyers. Wasn't it shakespeare who suggest that they all be done away with? Frankly I think we'd be way better off if we had fewer law schools. Our lives are very complicated in part because the lawyers need it to be. How sad.

and I just don't think that Gitmo was a mistake at all. It makes complete sense to me. What are the alternatives? It seems to me that with all the hounding of our service men by liberal leaning lawyers the net result is more killing on the field of battle. My son, the Marine, told me one of their most important mottos: better to be tried by 12 than carried by six.

Posted by: skipsailing28 | December 22, 2010 4:51 PM | Report abuse

"My son, the Marine,"

Just as an aside I have 10x the respect I had for you before I knew that. Congratulations, good work. I should be so lucky. I'd love to raise a Marine, heck I'd settle for a Coastie. My kids, I will try to force them, sorry I mean prepare them for a career in medicine, but personal integrity is just about everything, it pervades everything we value. Even further aside, one of my my foster kids is a young adult now and after her terrible early life, she just married a Marine. She even lived in one of those shacks at Quantico...now they have a great life; he works at Hanford on an if he told me about it he'd have to kill me project. She raises kids and speaking of dying, she thinks she died and went to heaven "for the second time," she just told me that. Marines are special.

Posted by: shrink2 | December 22, 2010 5:03 PM | Report abuse

I reject gitmo.

"What's stopping them from expanding this to anybody else -- because they promise not to?"

Exactly. put these guys in front a tribunal if you have to, but you can't just hold them indefinitely.

Posted by: NoVAHockey | December 22, 2010 5:04 PM | Report abuse

It was a brilliant strategy on the part of Cheney, Bush and Rove etc. Torture some prisoners, or have them tortured by other countries, and house them offshore. Then, admit they were tortured, so that every lawmaker and government official in "der homelaaand" knows the truth and is convinced: we can NEVER bring anyone who is "detained" into a court of law to argue their side - to do so would allow an indictment of America in a court of law.

Brilliant! An abuse of power, of course. And a crime against ME, an American of conscience. But brilliant - they get what they wanted: unchallenged detention of whoever they choose, for the rest of their lives. Brilliant. And an ugly stain for the rest of OUR lives. :( And the people of the world hated us BEFORE 9/11? They are hating us with a vengeance now...

Posted by: LawsLuvr | December 22, 2010 5:06 PM | Report abuse

thank you shrink2. I am sinfully proud of him. Frankly his four year hitch was easily the most difficult time in my life.

I worried endlessly during his first tour in Iraq. Just after he arrived there the Marines kicked off their first AlAnbar campaign, assaulting city after city along the ancient smuggling routes. I stayed away from the news but was so deserparate for info that I wound up reading every blog I could find. Wretchard at the Belmont club got me through.

the hardest part, though, was the photos he brought home. In just about every one of them the SOB was smiling. I could have killed him with my bare hands (yeah, right).

Like a lot of veterans I've met he rarely discusses his experiences. When he does I realize that I didn't know the half of what it was like and I'm glad.

Here's a link to a youtube slide show I made up based on his photos. I included some stock photos to go with the song by James Hooker. "hanging out with the boys"
http://www.youtube.com/watch?v=lrgpwppJZaw

He's home now. He's getting straight A's in his pursuit of a degree in engineering. The Marines did wonders for him as a man. I stand in awe of him, as I should.

thank you again for the kind words.

Posted by: skipsailing28 | December 22, 2010 5:29 PM | Report abuse

@NoVAHockey "I flat out reject that. The idea that a government panel can decide for itself, who is or is not eligible for trail, makes a joke of our entire system. What's stopping them from expanding this to anybody else -- because they promise not to? "

The bright line should be U.S. citizenship.

More fundamentally, it also makes a "joke of our entire system" when we hold a trial where the determination of guilt is irrelevant to the prisoner's status. I.e. even if the accused is acquitted of all charges, they still aren't released. A.G. Holder's response to this concern is "Failure is not an option".

" Kohl: But taking into account that you never know what happens when you walk into a court of law, in the event that for whatever reason they do not get convicted, what would be your next step? I'm sure you must have talked about it.

Holder: What I told the prosecutors and what I will tell you and what I spoke to them about is that failure is not an option. Failure is not an option. This--these are cases that have to be won. I don't expect that we will have a contrary result."

http://online.wsj.com/article/SB10001424052748704888404574547933018090304.html

http://www.washingtontimes.com/news/2009/nov/19/holder-suggests-acquittal-wont-free-terrorist/

My solution to this would be to replace the Exclusionary Rule with civil remedies, so that the Federal Courts become a much more viable venue to hold these trials and to exercise oversight of any preventive detentions for enemy combatants.

http://www.slate.com/id/2275545/

http://www.slate.com/id/2143983/

Posted by: jnc4p | December 22, 2010 5:57 PM | Report abuse

@shrink2 "I am saying, you don't just one day decide to set up and operate a concentration camp for people of no particular legal status (not POWs, etc.) "

I think you do a disservice to the military professionals charged with maintaining the detainee policies of the United States Government in Guantanamo by characterizing it as a "concentration camp".

One thing to keep in mind about the debate on closing Guantanamo is that the proposals to move the detainees to the United States Mainland are predicated on putting the detainees in the equivalent of a SuperMax prison. I would submit that the living conditions of the detainees themselves will be considerably worse if they are housed in the United States instead of Guantanamo. The relative security provided by Guantanamo's location and military control permit the detainees to be held in less restrictive conditions than the American public or their Congressional representatives will tolerate on the mainland United States.

I.e. the detainees themselves will probably be worse off if Guantanamo closes.

http://www.npr.org/templates/story/story.php?storyId=121454635

http://www.usatoday.com/news/washington/2009-05-21-obama-guantanamo-speech_N.htm

http://en.wikipedia.org/wiki/Supermax

Posted by: jnc4p | December 22, 2010 6:29 PM | Report abuse

"I think you do a disservice to the military professionals..."

Wrong. The people who set it up did a disservice to military professionals.

Posted by: shrink2 | December 22, 2010 6:38 PM | Report abuse

@shrink2 ""I think you do a disservice to the military professionals..."

Wrong. The people who set it up did a disservice to military professionals."

What would you have done with Khalid Sheikh Mohammed and the others when they were captured instead of sending them to Guantanamo?

Posted by: jnc4p | December 22, 2010 6:43 PM | Report abuse

If I told you I'd have to kill you. Just kidding, but do you get it?

It was some conceit of the Bush/Cheney administration and their justice Department that they could surface the problem of dealing with people all governments all governments have dealt with since nation states began by saying, well since we are America and because of 9/11, we have the right to grab people anywhere we can...anywhere we can...whom we think or know might want to hurt us and stick them in this place and we want everyone in the world to see us do it. You don't get to ask questions.

Posted by: shrink2 | December 22, 2010 6:57 PM | Report abuse

I forgot to add, I believe that gitmo is an abuse of civilian control over the military. If the US decides it needs to kill people somewhere else, we have means.

But when the CIA, the Xe paramilitary/mercenaries and our armed forces, the military professionals, when they are are all mixed up, we have a banana republic on steroids.

You know what a banana republic is. It has nothing to do with bananas.

Posted by: shrink2 | December 22, 2010 7:08 PM | Report abuse

.
Bigger problem.

This new Executive Order is going to come up with some plan to deal with the 48 or so men we plan to permanently detain in a way that does not follow our own system of laws.
The EO will rationalize their "life sentence without parole."
But at least we have SOME reason, even if it's a poor one, for holding them: we have a feeling that they are dangerous, too dangerous to release.

.

SO WHAT'S THE BIGGER PROBLEM ?
We are also currently holding another 91 or so that are innocent. We have thoroughly checked them out, and it turns out we arrested and tortured the wrong guys.
Oops.
Most of them are from Yemen. In legal jargon, they are "cleared for release."
But since the Congress says they can't come here, and since other countries aren't so anxious to take these folks that we have abused,
THEY TOO ARE BEING HELD INDEFINITELY.

This is worse than detaining the folks who MIGHT be bad guys; we know these guys aren't.
And "indefinite" is functionally equivalent to "life sentence" until somebody takes action to get them released.
.

Posted by: BrianX9 | December 23, 2010 4:18 AM | Report abuse

frankly, obama is just another version of bush in almost every way.
big government
aid to the rich
a corporatist with fascist tendencies

Posted by: newagent99 | December 23, 2010 11:39 AM | Report abuse

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