OMG! TEH BILL OF RIGHTS IS A SUICIDE PACT!!11!1!!
By Thoreau
Via IOZ, I learn of a fascinating debate playing out among various DC insiders:Â What if a person accused of involvement with terrorism is put on trial and acquitted?
James Madison, that limp-wristed liberal Blue State America-hater, had an answer, but I don’t think any of these people care much.
A few gems from the article:
That concern is at the center of a debate among national security, human rights and legal experts that has intensified since the election. Even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted.
“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,†said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.
…Whether the Obama administration should push for a preventive detention law has inspired “a very hot and serious debate,†said Ken Gude, a national security scholar at the liberal Center for American Progress, adding, “I’ve had conversations with progressives who think it is a good idea and conservatives who think it’s a terrible idea.â€
Who could have possibly predicted that conservatives might start to worry about government detention power as soon as the detention orders were signed by a Democrat with the middle name “Hussein”? Or that liberals might start adopting bed-wetter rhetoric the moment that the “boot stomping on a human face forever” was Blue instead of Red?
No, I’m not going to blame the Obama administration for anything that it hasn’t done yet. Indeed, I share the confidence of everyone here in predicting that Obama will successfully resist the rising chorus of rhetoric from across the spectrum, including people on his own side, and renounce the Washington consensus in favor of protection of civil liberties and basic American principles. I mean, if you can’t trust a guy who rose rapidly through the political game and raised massive amounts of money from all sorts of places in order to acquire the most powerful office in the world, whom can you trust?
OK, seriously, this isn’t about Obama’s character. Obama is one man. Whether he is the best or worst man in the world, he is one man. This machine is far bigger than him. The predictable rhetoric starts to pour out of the capitol city from the faction in charge, and one man alone will not steer it around. This is on auto-pilot. America’s ruling class will not abandon the presumption that they need the power to detain anyone at will simply because it’s a different person in charge. Oh, the rhetorical spin-doctors among the courtiers may change their yelps depending on the season and the color of the boot, but they aren’t the ones who wield the water boards. This machine is bigger than any President, and it’s even bigger than a bunch of talking heads on cable.
Comment by abb1 —
November 15, 2008 @ 2:17 pm
…conservatives might start to worry…
Some conservatives might start worrying, but, generally speaking, a Democratic administration is in a better position to tighten the screws than a Republican one.
Comment by William Burns —
November 15, 2008 @ 2:34 pm
Interesting choice of metaphor there, abb1.
Comment by Mithras —
November 15, 2008 @ 2:42 pm
I would caution against reading too much into an isolated quote from Prof. Cole, who has consistently criticized both Clinton and Bush on liberty issues. (Cole’s book, “Terrorism & the Constitution: Sacrificing Civil Liberties in the Name of National Security”, published after Oklahoma City, is on my shelf.) It is literally true that a democratic society permits preventive detention. One common example, mentioned in the story, is the involuntary commitment of persons with mental illness. We keep such people locked up without trial, and often without even the accusation of a crime, on a regular basis.
I suspect that the NYTimes reporter pushed Cole on the legal point of whether preventive detention is ever legal, and then used the quote to suggest “even the liberal David Cole” favors it for detainees. None of the liberals quoted in the article advocate it, unless you still regard Brookings as liberal.
Thought experiment: I presume any detainee facing trial would need to be examined by court-appointed psychologists first. If neutral experts deemed a detainee dangerously mentally ill, would it be acceptable to hold him? What if his condition was likely caused by his confinement? What if a detainee were to be deemed sane, but when asked to enter a plea in court admits the allegations against him and, further, states his intention to kill Americans if he were to be released? Does it change the answer if, outside the defendant’s statements, none of the other evidence against him is admissible? If the defendant honestly believes that the whole trial is a sham, and that he will be executed no matter what, should the judge disregard the admission as not being freely made? I can easily imagine any or all of these situations coming up.
Comment by John Emerson —
November 15, 2008 @ 3:41 pm
OT, but I’ve collected freemarketers’ obsolete praise for Iceland’s deregulation and economic miracle here
Comment by Walt —
November 15, 2008 @ 6:11 pm
I have learned today that I apparently read the exact same blogs as John.
Thoreau, you need to be more skeptical of what appears in the New York Times. While it’s a possibility that lots of liberals are lining up for preventative detention (I don’t know any personally), it’s a certainty that the Times is pushing a line. The elite consensus on Iraq is that it was all an understandable mistake, and that the Bush administration is guilty of only tactical blunders. The alternative is that the elite, including the Times, colluded in war crimes. The elite is surprisingly unwilling to draw this conclusion.
Comment by Thoreau —
November 15, 2008 @ 7:16 pm
Fair point, Walt.
Comment by Idi Amin's Last Meal —
November 15, 2008 @ 8:40 pm
Give the acquitted terror suspects the Sammy “The Bull” Gravano treatment. New names, new residences, new trades… Then, wait. In six years, they’ll be picked up for some other, verifiable chicanery — in Sammy’s case, dealing ecstacy (seriously…) — & we can imprison them then.
Comment by DCA —
November 15, 2008 @ 9:43 pm
What exactly does “too dangerous to release” even mean? What would these guys actually do if released into the US, but placed under heavy monitoring? They would not be citizens, certainly–so give them a special “black card” immigrant status that requires regular (daily?) reporting to authority. If they try anything, try them for that action.
Comment by Abidemi —
November 15, 2008 @ 10:42 pm
DCA, that by itself sounds very open to abuse.
How long before a quarter of the people in the country have “black cards?” How long until the crimes necessary to get a “black card” keep dropping lower and lower? That’s a crossover into the Drug War waiting to happen.
Comment by Thoreau —
November 15, 2008 @ 10:54 pm
If a person is acquitted but the FBI has a reasonable suspicion that this person will join up with criminals and engage in violence, then the FBI should use lawful methods to investigate that suspicion. That person can go about his business until probable cause of a crime is found, at which point he can of course be arrested, charged with a crime, and tried in a court of law.
Really, this isn’t rocket science.
Comment by buermann —
November 16, 2008 @ 3:44 am
Lost in this somehow is that the extraordinary rendition regime was established by Clinton to outsource torture-based intelligence. “Indefinite detention” could have been a superior alternative to shipping guys off for the full Mukhabarat treatment. Instead of an indefinite interlude at the Ritz Carlton while somebody did some real rocket science investigating the cat and trading information for cupcakes – every suspected terrorist, rest assured, loves cupcakes, and will sell his very soul for the price of two at the Ritz Carlton Hospice for the Usual Suspects – we got SERE-plus.
Just once I’d like one of these slippery slopes we’ve been on to lead to the waterslide at the funpark.
Comment by Nell —
November 16, 2008 @ 9:51 pm
In support of Walt’s and Mithras’ point, the Washington Post featured an analogous quote from David Cole (introducing the “ticking bomb” scenario) in the very first mass media trial balloon on torture, on October 21, 2001 — an article by Walter Pincus.
Reading that article, in the last print version of the Sunday Post I’ve touched since, was an almost out-of-body experience; a voice from somewhere, which must have been mine, was saying “This is how it begins” over and over.
However innocent Cole might be, that article was the beginning of legitimizing torture as official policy (it was quickly followed by the vile, craven Jonathan Alter “Time to Think About Torture” on 2 November in Newsweek, and then a flood of ‘hey, everyone’s talking about torture’ columns).
The discussion Thoreau cites is the beginning of legitimizing preventive detention as official Obama policy. The time to say no is now. Given the history, no one should feel ashamed about screaming it.
Comment by Glaivester —
November 17, 2008 @ 10:22 pm
Who could have possibly predicted that conservatives might start to worry about government detention power as soon as the detention orders were signed by a Democrat with the middle name “Hussein� Or that liberals might start adopting bed-wetter rhetoric the moment that the “boot stomping on a human face forever†was Blue instead of Red?
While that may very well be true, from the context I assumed that what was being said was that there were people for each position on both sides of the political spectrum. He wasn’t saying that liberals favor this and conservatives oppose this but that despite the common equation of indefinite detention with conservative, not all people who favor it are conservatives, and not all who oppose are liberals.
There have been conservatives who have been against torture and indefinite detention for quite a while (think Paul Craig Roberts). It’s just that they are not the majority voice.