Wednesday, July 8, 2009

Obama Administration Continues to Argue for Preventive Detention to Guard Against Future Crimes

From today's Wall Street Journal (emphasis mine):

The Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges by a U.S. military commission.

Jeh Johnson, the Defense Department's chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.

Like the Bush administration, the Obama administration argues that the legal basis for indefinite detention of aliens it considers dangerous is separate from war-crimes prosecutions. Officials say that the laws of war allow indefinite detention to prevent aliens from committing warlike acts in future, while prosecution by military commission aims to punish them for war crimes committed in the past.

This news is obviously disappointing and works to undercut the Obama Administration's continued statements promoting their adherence to the rule of law. Let's set aside, for a moment, the point that the Military Commissions system is flawed and pretend that it was a model process for bringing detainees to trial. What the Obama Administration is arguing is that even if detainees are acquitted by a Military Commission, they could still be legally detained until it can be determined that said detainee would not pose a danger to the United States. Why do they feel that this is an acceptable policy - because Military Commissions are only set up to punish people for "war crimes committed in the past" and therefore cannot determine who would commit war crimes in the future.

According to this rationale, it would make sense for the Obama Administration to set up an additional Commission whose job it would be to put detainees on trial in order to examine if they should be convicted on "evidence" that they would commit future crimes. This Orwellian argument certainly ranks up there with some of most disturbing arguments put forth by the Bush Administration over the last eight years.

Continuing on in the WSJ article:

Mr. Johnson said such prisoners held without trial would receive "some form of periodic review" that could lead to their release.

Sen. Lindsey Graham of South Carolina, a leading Republican on detainee policy, approved. "Some of them will be able to get out of jail because they've rehabilitated themselves and some of them may in fact die in jail," Mr. Graham said. But "I don't want to put people in a dark hole forever" simply "because somebody like Dick Cheney, or you fill in the blank with a politician, said so."

I am glad that Graham approves of vague promises of "some form of periodic review" that may or may not lead to the release of those held without charge. What kind of laws and system of justice is the Obama Administration championing with their vague terminology and in endorsing a detention system that would make the previous administration proud? As Rep. Jerold Nadler (D-NY) said in that same WSJ article:

"What bothers me is that they seem to be saying, 'Some people we have good enough evidence against, so we'll give them a fair trial. Some people the evidence is not so good, so we'll give them a less fair trial. We'll give them just enough due process to ensure a conviction because we know they're guilty. That's not a fair trial, that's a show trial,"

Also interjected into this discussion is the issue of admitting "evidence" that was obtained using coercive techniques. The reliability of this evidence is at the center of the debate surrounding the issue of Military Commissions since statements obtained under coercion are currently admissible. It appears to be the thought of the Obama Administration that if they determine that so-called "evidence" obtained using coercive methods are not reliable and should not be admissible, then a number of convictions would be overturned due to their reliance on unreliable evidence. If these convictions are overturned, then it can be said that these individuals would continue to be detained if the Obama Administration is successful in arguing that they can continue to legally detain prisoners based on the threat of so-called "future crimes". The cancerous effects of torture continue to be felt.

About a month and a half ago, I posted a clip from the Rachel Maddow Show in which she discussed the speech during which President Obama first floated the idea of detaining people for so-called "future crimes". I am posting it again below because I feel that it continues to be relevant to this discussion.

This article is crossposted here.

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