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May 21, 2009

Obama's Brilliant, Unprecedented Plan for Terrorists: Lock Them Up Forever Without Trial

Hm! Why didn't we think of that?

President Obama told human rights advocates at the White House on Wednesday that he was mulling the need for a "preventive detention" system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried, two participants in the private session said.

***

The two participants, outsiders who spoke on the condition of anonymity because the session was intended to be off the record, said they left the meeting dismayed.

***

"He was almost ruminating over the need for statutory change to the laws so that we can deal with individuals who we can't charge and detain," one participant said. "We've known this is on the horizon for many years, but we were able to hold it off with George Bush. The idea that we might find ourselves fighting with the Obama administration over these powers is really stunning."

The other participant said Mr. Obama did not seem to be thinking about preventive detention for terrorism suspects now held at Guantanamo Bay, but rather for those captured in the future, in settings other than a legitimate battlefield like Afghanistan…

Karl writes that Obama's big, nuanced, terrorist-mollifying new plan is to go beyond George W. Bush in detaining terrorists without trial. That's true, in a certain way.

What Obama is talking about is not exactly new, but it is new-ish, and it remains very controversial. Beginning sometime around the early nineties, when the public became distressed about repeat sexual offenders being released into the public after having served their sentences only to, of course, rape or molest someone else, legal theorists began adopting the notion of "civil incarceration" to keep them locked away, long after the expiration of their actual criminal sentences.


Civil incarceration is itself derived from the long-practiced notion of civil commitment of dangerous lunatics to an asylum. Is commitment is a civil, not criminal, action, no proof of actual criminality needs to be proven. Only the strong likelihood that the person being committed presents a serious danger to himself or others, and therefore must be locked up for his own, and society's, protection.

Note that's a pretty serious thing, if you've never considered it before. While as a technical matter, the proceeding is not criminal in nature, it results in a person effectively receiving a criminal penalty -- incarceration, deprivation of most freedoms -- for an indefinite period of time. And yet without any actual proof of actual criminal acts -- only the likelihood of dangerous acts being committed in the future. Established not by proof of criminal acts, but an expert witness' opinion.

As scary as that power is, it's long been accepted as tolerable because... well, there's no denying there are insane persons out there, and they really, seriously probably will hurt themselves or others if left unsupervised.

Obviously such an incredible power is ripe for abuse, and of course it has been abused in the past.

But, again: It's accepted, because no one can seriously deny that at least in some situations such involuntary (but noncriminal) confinement is necessary.

Now, with it becoming more and more understood that sexual predators have a well-nigh uncontrollable urge to re-offend, some theorists began postulating that such civil confinement rules could be applied to sexual predators. The cases are, after all, pretty analogous. The basics of the problem stem from an uncorrectable psychological dysfunction, and sexual predators, as much or more than run-of-the-mill lunatics, present a compelling case for likely harm to others in the future, should they be allowed on the street.


Many states thus began passing laws permitting civil incarceration of proven repeat sexual offenders whose propensity to re-offend could be established in court. And note, critically, that states had the power to lock away sexual predators even after the sentences for their actual crimes had expired. The theory underlying the incarceration changed -- for the duration of their sentences, their incarceration was criminal and punitive in nature, punishing past proven crimes; but afterwards, for the civil incarceration period, their incarceration was, theoretically, civil, and not punitive in nature at all, but rather preventative.

And note, especially: This incarceration could go on forever. The incarceration would continue as long as the detained person "presented a threat" to the public safety.

A murderer might get 25 years. Someone incarcerated under this theory could get a life sentence -- they would just be held until they could prove they were no longer a high-risk for re-offending, which, in most of these sick bastards' cases, was impossible to prove.

Necessary?

Maybe.

Prudent?

Probably.

Constitutional?

Errrmmm... Let's call it "iffy" at best.

Obviously this presents enormous constitutional questions. We are talking, after all, about the indefinite supposedly-civil-but-in-effect-criminal detention of United States citizens without any actual criminal trial or criminal judgment to support such a thing. It is only the genuine seriousness of the threat posed by incorrigible repeat sexual predators that causes many to wink at this practice, setting aside grave constitutional questions for the sake of public safety.

And even among supporters of this regime: We wink at the practice. Few people out there, I'm thinking, truly believe this is all according-to-Hoyle as far as the Constitution, or what the Framers intended. We permit it not because we're confident it's constitutional, but for the practical reason of "What other choice do we have?"

To this day, the practice remains extremely controversial, and many civil rights lawyers insist it is a lawless practice. And their arguments cannot really be laughed away as trivial, even if you agree that in such cases, concerns about the Constitution are a luxury that must not be indulged in.

Now, Barack Obama wants to extend this already-suspect doctrine to cover terrorists. I don't see the great harm in extending the doctrine to cover terrorists, as we're already using it to cover sexual predators. If we're already kinda-sorta bending if not breaking the Constitution for the latter, it's only a small step to bend it a little more to incarcerate terrorists without trial, again, on the basis that they constitute an ongoing threat to the public safety.

But let me point this out in bold-caps: We already have a much more time-honored, less controversial, and more plainly constitutionally-permissible basis for the long-term detention of enemy combatants without trial.

And that basis is, of course, the 50,000+ year old idea that battlefield captures may be held, without trial (or indeed any accusation of criminal behavior whatsoever), until a war is actually over. (Or, of course, if the executive decides to release them for other reasons, such as mercy, to swap for our own captured soldiers, etc.)

This principle has been around longer in human history than we've actually even had laws at all. The principle pre-dates any formal law. It's common sense, and it has been common sense, and the unquestioned right of a sovereign, for all of human history.

Until, that is, the past seven years, when leftists the world over were suddenly aghast at the notion that an enemy soldier could be held indefinitely, until an armistice signed or a war otherwise terminated.

Now, during Bush's term, such enemy combatants were in fact detained without trial on exactly this entirely-uncontroversial theory. (There is a distinction between lawful combatants, who are owed certain rights and privileges during their detention, and unlawful combatants, who are not merely enemy fighters but illegal, criminal enemy fighters, and who are owed far less in terms of rights and privileges; but that distinctions needn't concern us at the moment, because, for both classes of enemy combatants, the legal right to detain until a war was actually over has never before been questioned.)

Obama claims that this 50,000+ year old principle is somehow inconsistent with American values, despite the fact that we've employed it in every single war in the past. We didn't release Nazi prisoners until we won WWII. (Or, again, we might have, but not because we were compelled to legally; but rather for other reasons, such as mercy, a prisoner exchange, etc.) We didn't release Viet Cong soldiers until we left that country (and then we released them to the South Vietnamese Army, which held them until... they were defeated in battle and were compelled to release them, simply for having lost a war). We didn't release Confederate soldiers until the Civil War was won. We didn't release British solders and German mercenaries until the Revolutionary War was won.

And nor has any country in the word released battlefield captures until the war they were captured in had ended.

Again, not a bit of this was uncontroversial, or even questioned, until the Left decided that it was somehow unconstitutional around November 2001.

So now Obama is going to employ a truly controversial, truly constitutionally questionable, truly novel (remember: This whole notion of quasi-criminal incarceration under the pretext of civil commitment became law in the early to mid nineties) basis for achieving the exact same effect (indefinite detention without a trial) that Bush did relying on a 50,000+ year old tradition of the law.

And the left, and liberals, cheer him for this great innovation. See, for example, various lefties singing Hoseannas to Obama on the New York Times blog.

Why on earth are they praising this?

For two reasons:

First, they get to pretend they've somehow brought the mean old traditions of military practice under a regime of civilian law by civilian judges. But note this is only a pretense: In point of fact, Obama's "plan" has no different actual outcome than Bush's. We just change the terminology a bit, and pretend that this is entirely a civil affair and entirely a civilian doctrine, and, by doing so, we get to do precisely what military practice has blessed for 50,000 years.

Second, and this is much more important: They get to pretend that Obama is acting differently than George W. Bush, which permits them to praise and support Obama's plan, while keeping viable a paper-thin semantic distinction that permits them to continue castigating Bush and Cheney as "lawless" and violators of the Constitution.

It's win-win-win: Obama won't have to face the political peril of actually releasing these terrorists (as he promised to do), allowing the terrorists to basically determine the fate of his presidency through their inaction or actions; the left gets what is always most important to it, the opportunity to pose and preen as moral paragons, despite endorsing a plan that differs from Bush's not a whit except in terms of semantics and underlying theory; and of course Bush and Cheney continue to be villains, because, well, they didn't have the great brilliance to realize they could just lock people up forever by simply making up a new phrase ("preventative detention").

Silly Bush and Cheney -- they stupidly thought they had to rely on time-worn and well-established principles for such detentions! They didn't realize they had the freedom to just make crap up as it suited them!

So there you go. Obama is proven as righteous and brilliant, the left is also proven righteous and brilliant for realizing Obama's righteousness and brilliance, and Bush and Cheney remain stupid and sadistic.

And all we had to do was change two words, and endorse a constitutionally-suspect theory of permanent detention of a man unproven by any court to have committed a crime.


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posted by Ace at 04:16 PM

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