Barack Obama Takes Away Your Right to a Criminal Trial!
Or, that is how I’d imagine the headline would go on a lefty blog, if this were George W. Bush enacting an executive order allowing indefinite detention of detainees. Lest we forget their hysteria over denying detainees the writ of habeus corpus, deceitfully suggesting that it applied to American citizens as well. Some lefty blogs are giving the news of the EO soft criticism at best, no doubt because it’s Barack Obama doing it. For my own part, I previously wrote opposing the administration’s consideration of a “preventative detention” system, and this executive order is essentially that, though perhaps not exactly.
Don’t get me wrong. I fully understand what many of these people want to do to American citizens and American infrastructure. They want to kill as many as possible and bring America to its knees financially. I understand that.
However, indefinite detention goes against every principle of justice that America holds dear, including the ones about people being able to make their own defense in a court of law.
We claim to want to bring democracy to the Middle East. We’ve done it (to varying success) in Afghanistan and Iraq. We’re seeing democracy in action in a bottom-up style in Iran. Indefinite detention sends mixed messages to this part of the world. Namely: “We criticized you for doing these things, but see how we do now.” As Michael said in his article from earlier today, “…it becomes a bit difficult to criticize other governments for doing the same things, albeit with individuals with whom you agree.” And he’s right. I tend to think it is showing of rank hypocrisy.
Ed Morrissey at Hot Air brings up an old talking point about this issue (emph. mine):
We don’t release POWs until after the conclusion of hostilities, and we sure as hell shouldn’t be releasing illegal combatants any earlier, incentivizing terrorists for operating outside the rules of war. The fact that they joined an endless jihad against the US shouldn’t get them any consideration for earlier release dates; when the radical Islamists either surrender or get destroyed, then we can see about releasing them. Until then, they should stay locked up and away from the fight.
What I bolded is exactly the problem. Finally, someone on the conservative side seems to realize that a War on Terrorism never actually ends, because there will always be terrorism. Is Ed suggesting that we hold terrorists forever without trial because their jihad will never end? If so, that idea is unAmerican to me (no I’m not saying Ed is unAmerican, just the idea).
This was always my biggest criticism about how the War on Terror has been conducted. Some hawks seem to want to cherry pick the Geneva Conventions, ignoring the parts about detainee treatment while supporting the parts about how long to hold POWs. This, even though they’ve been reluctant to call the detainees POWs in the past, thus making their case for ignoring other parts of the conventions. You cannot have it both ways. Either all of the Geneva Conventions apply or they all do not apply. That said, the Conventions are hopelessly outdated, written in a time when we fought nations, not bands of guerrilla fighters. They need to be updated, to handle the new realities of war.
What I want is to not release these people, but to put them on trial for their crimes. If there is not a court system that can take these cases without jeopardizing national security, then one must be made. I’m still not buying the idea that we will have to hold some people forever because they cannot be tried. I think it not only jeopardizes our moral standing in the world, but it creates a dangerous precedent. As I said in my previous article on the preventive detention system, I’m not normally one for slippery slope arguments, but PD enters uncharted territory for America. It’s my view that we needn’t change the way we’ve always pursued justice just because we’re faced with a tough situation. Instead, we do what we’ve always done in America, find a way to fix it.
I am willing to accept a limited reinstatement of indefinite detentions, but only until we find a way to try the detainees. I don’t think preventative detention is an acceptable solution to the problem. If we can try Khalid Sheik Mohammed (as seems to be the case), who we know was waterboarded, and who was the mastermind of 9/11, we must be able to try the rest.
I believe that by the time that the conventions dealing with detainees and other non-nation actors were written the French Algerian war had already happened so we already knew about this type of asymmetrical warfare. There may need to be another convention, but this situation is not a new kind of warfare.
I agree completely and we need to hold the WH and congress to account on this.
Michael,
What about the following kinds of cases?
1) Where there exists good evidence that the detainee was or is a member of al-Qaeda and/or would take up arms against the U.S. if released BUT the evidence obtained (by military or intelligence personnel operating in a foreign country under extreme time pressures and even under fire) does not meet the normal standards required for chain of evidence for criminal trials?
2) What about detainees where it is illegal under international law to release them to their home countries due to the threat of persecution or mistreatment?
I’ve asked these questions directly to critics of U.S. detention policy (especially Glenn Greenwald) literally dozens of times. I have never once received an answer. Maybe before we rush to hold the White House and Congress to account for non-compliance with an impossible standard, we should first hold the critics to account for non-compliance with the real world.
P.S. Jeb is factually wrong about when the relevant conventions were written. Even if he were correct, the fact is that the French campaign in Algeria was in gross violation of those standards and cannot, therefore, be used as an example of how easy or practical they are to comply with.
Who on the conservative side said that the War on Terrorism will completely end or who didn’t say it would be a very long process?
You cited the wrong “lefty” blogs. Glenn Greenwald at Salon, Darren Hutchinson at Dissenting Justice, and the TalkLeft blog have written scathing critiques of Obama.
The lefty blogs criticizing Obama for not being lefty enough don’t count as real even-handedness.
Re “Either all of the Geneva Conventions apply or they all do not apply” – not true.
The Geneva Convention is not holy writ. Rather, the rules it sets down are modern warfare’s equivalent of the Marquis de Queensbury rules of gentlemanly boxing. It would be great if they still applied.
However, modern terrorists are more like pirates of old than soldiers and deserve to be treated with the same rule – no quarter.
I believe Obama has backtracked on military commissions. Isn’t this type of evidence allowed there? Or is it not? Maybe not, since he even has to consider PD. Not sure if you’re talking about torture evidence or not, which I know Obama plans to ban under new military commissions.
Just asking some questions before I respond fully.
2) What about detainees where it is illegal under international law to release them to their home countries due to the threat of persecution or mistreatment?
Try them here? Seems simple to me.
To prevent a misrepresentation/hijack by others (not you, Michael), I will state bluntly that I am NOT talking about torture evidence. I am talking about chain of evidence and validation problems with things like eyewitness testimony. The standards for these things in civilian criminal justice are just not realistic in international/combat settings.
That’s what causes problems with trying people using civilian criminal justice standards. If those standards cannot be met, the law says that the defendant must be released without conditions. Unfortunately, we know from experience that many of these people actually are terrorists even though we can’t meet the standards of civilian criminal justice to try them (any more than we could meet those standards if applied to POWs in a state-vs-state war). Releasing them outright risks simply returning enemy soldiers to the battlefield.
Furthermore, if we are legally required to release them, the normal standard is to release them to their country of origin. But if they present a case that they might be persecuted or mistreated, they would be released within the United States.
This all adds up to a legal requirement (because we are misapplying civilian criminal justice standards to the problem of international non-state combat) that we release enemy soldiers on to U.S. soil. The only way to prevent this from occurring is to somehow adjust the legal framework we are using so that it bridges the gap between civilian criminal justice (which is inadequate to the situation) and international law of POW treatment (which is inapplicable to a war with no definable end state). While Marc is correct that the problem is similar to piracy, he is flatly wrong in his claim that there exists a clear international law solution to the problem. As I am addressing in an article I am writing right now (hopefully for submission to an international law journal), piracy law has atrophied to the point that it is fundamentally incompatible with human rights treaty commitments that bind the United States and most of the rest of the countries of the world. Both international and domestic law require review and redesign to bridge the gap.
Unfortunately, those who have adopted this issue as their cause for activism (e.g. Glenn Greenwald, Kastanj) refuse to even acknowledge the dilemma and instead demand a purist civilian criminal justice approach with no modification or even discussion of the problem.
And that is what I am criticizing them for.
Really, I thought most of the relevant provisions for our current situation were added or amended with protocol II in 1977.
I would say the opposite. I brought this up to illustrate that the type of asymmetrical engagement we are facing is not new and that protocol II of the Geneva Conventions was written after this engagement.
Jason, you seem to speak of civilian trials and civilian chain of evidence. What I’m wondering is if military commissions would fix the problem. Obama seems to indicate they won’t for all. Presumably he knows about some cases where even MC wouldn’t work. Perhaps ones where people were taken off the battlefield and their link to Al Qaeda was only established by torture techniques?
Military commissions could solve the problem IF they were given adjusted standards for chain of evidence and other technicalities that simply aren’t practical on an international stage. (Once again, I’m going to preempt misrepresentation by saying I am not talking about making evidence obtained through torture admissible.) The problem, however, is that every time such adjustments have been proposed, the same group of activists that refuse to answer critical questions about civilian trials opposes the adjustments vociferously. So even if military tribunals could solve the problem, the form envisioned by those who are seeking to control this policy area would not.
If torture was used to obtain evidence, then we cannot use that evidence to try those people no matter what IMO but are again left with a very troubling set of alternatives. We can release them outright, but that might amount to releasing enemy soldiers on to the battlefield or, worse, into the United States itself.
My point is that there is no perfect answer, only imperfect answers that must struggle with tradeoffs and moral dilemmas. And what I am criticizing from the activists is their outright refusal (Glenn Greenwald is currently ignoring another email, this one sent in direct response to an email FROM him) to struggle with these questions AT ALL.