Tuesday, March 8, 2011

Indefinite detention... what to think?

This is kind of an open post. Gary Gunnels shared this with me on facebook, something I had read about the day before as well. This story has been reported two ways:

"Obama is starting Guantanamo trials again", and
"Obama is reviving indefinite detention".

Two very different spins indeed, and I'm not sure what I make of it. So long as we are engaged in a protracted, major war against al Qaeda and other allied terrorist organizations I see nothing wrong with indefinite detention of terrorists. In World War II we didn't say "well gee, we've been holding you Nazis for a while now - it's 1943 for goodness sake - why don't you go back home". There's nothing about the concept of indefinite detention that bothers me, so long as treatment is humane. The other concern with terrorists, of course, is that unlike Nazis they're not in uniform. So obviously you want reviews and trials to determine whether holding them is just. So when I read the news of restarting the trials yesterday I read it as good news, and if everything was above board with the trials the indefinite detention issue seemed unremarkable to me.

Gary didn't receive it as well.

So I have to claim ignorance to a certain extent (and I'm guessing most of you have to as well, if you're honest with yourselves). What are these trials like? If they were just restarted and reformed how does Amnesty International (whom Gary links to) even know that they're as bad as the Bush administration's trials? My position is it's for people more qualified than me to determine whether these trials are sufficient, but if they are and if they are conducted for all detainees in a timely manner, the detention doesn't bother me. Nevertheless, I'm not uncritically embracing it - I'm contingently embracing it, fully cognizant that that's a lot of "ifs". What are people's thoughts?


  1. The objection is to the executive assuming/claiming that it has sole authority in this area; that was not even the case with the eight Nazis which were caught soon after they landed on I believe Long Island. Even in that case - guys not in uniform, etc. - the Supreme Court stated quite clearly that it had jurisdiction to hear their habeas case. Here we we have the Obama administration (just as the Bush administration did) claiming that no, the courts do not have authority in this matter. Which is a rather strange claim in light of the fact that the Obama administration (like every President since WWII) claims that the U.S. courts have extra-territorial authority enough to try all sorts of people for crimes that were not committed against Americans, by Americans or on American soil. There is a fundamental hypocrisy in that sort of jurisdictional hocus pocus.

  2. OK, well I wouldn't deny that the SC can hear the habeas corpus case. Is that being challenged? Guantanamo habeas corpus cases have already been heard by the SC. I'm not lawyer, but saying that military tribunals are appropriate here does not seem to be the same thing as saying the SC can't hear an appeal. Is this crazy of me? I genuinely don't understand the ins and outs of this, and I'm trying to figure out exactly what the issue is with this. I'm glad they are getting trials. I wouldn't have assumed that they are also precluded from having their cases heard by the SC.

  3. Bush and Obama have consistently resisted turning these case over to the civilian courts, where these guys could get adequate legal representation; part of the complication is the habeas challenges to this system of detention review. I have a fundamentally different view of the executive's powers in these cases (call it a difference of philosophy I guess); namely that just as in the cases concerning Lincoln's detention of people in the northern states the courts are open, they are free from coercion, they are working properly and they clearly have jurisdiction.

    What is hiding behind all of this is essentially a political motive; the Obama administration does not want to hand these guys over to Art. III courts because it would damage his re-election chances.

  4. I agree that people associated with attacks here and domestic cells ought to be tried in civilian courts, but people picked up on the battlefield?

    I suppose I'm just not understanding your logic. Respect all rights, fair trial, etc. etc. - sure. I fully agree with you. I should hope that goes without saying. But since when do we demand enemies picked up in a war zone be tried in federal civilian courts? I just don't understand the controversy on that point.

    Lincoln's detentions were of U.S. citizens. I'm not disagreeing with you on those sorts of cases. But Lincoln didn't hold tribunals for Confederate soldiers, did he?

    You seem to be throwing a bunch of issues at me at once. We have (1.) trial in Art. 3 courts... why is this to be offered to enemies picked up on a battlefield? (2.) the right to habeas corpus - my understanding is that Obama is withholding this from no one at Guantanamo - is this a misunderstanding? I thought this was clarified immediately upon his inauguration - am I misinformed? (3.) basic proceedures at Guantanamo - if they're in violation of anyone's rights obviously I'm not supporting that - but all I have been told of with this situation is that the trials are reopening. Are you suggesting they are in violation of anyone's rights? If not, then what's the concern?

  5. *Lincoln didn't try Confederate soldiers in civilian courts did he?

  6. The detainees are Guantanamo aren't just POWs found on a battlefield, though. Some of them are captured by other agencies of countries that the U.S. is not at war with, and were subsequently turned over to the U.S.

  7. Sure - and again I don't pretend to know the legal niceties of every specific case. But it's not clear to me that the fact that they're not being tried in civilian courts is in and of itself unjust.

  8. "But since when do we demand enemies picked up in a war zone be tried in federal civilian courts?"

    That's the problem; we're just supposed to take the executive's word on that. What we have in fact is a collection of people in a gulag detained under all sorts of circumstances - many of them picked up nowhere near anything like a traditional battlefield.

    The tribunals themselves are heavily flawed; the defendants can only have a real lawyer present if they pay for them (or get one pro bono), evidence which would not be admitted in a real court is admissible, and the litany goes on.


    That is ultimately the problem with GITMO; it is a gulag which houses all manner of people caught or detained under all sorts of circumstances, yet because they are detained there they're marked with the stigma of "terrorist" or "unlawful combatant."

  9. Daniel,

    I'm kind of surprised at your treatment of this issue. Whether these are bad guys or enemy combatants or not (it's hard to tell under current circumstances), some kind of judicial review under the scrutiny of the public eye is necessary in order to maintain a claim to rule of law.

  10. Robert -
    You think there's something inherently wrong with military courts?

    The denial of habeas corpus is a major problem. The torture is a major problem. The holding with no trial or evaluation of the case is a major problem. I don't see why military vs. civilian is a major problem.

    Do you think our military is incapable of having just trials? Why?

    American citizens or people caught acting on American soil I can totally support putting in civilian courts, btw. That seems entirely reasonable to me. I don't see the inherent argument to why everyone should be.

  11. Have we ever had non-citizen, not-captured-on-US-soil, enemy combatants judged, tried or reviewed by civilian courts? Ever?

    We have had cases where presidents have tried to try citizens or those captured on US soil in military courts and had that challenged and taken back to civilian courts. But have civilian courts ever been used for the other cases?

    Anyone? Any examples?

    Why is there a presumption against the military here?

  12. Gary pretty much nailed it. Having enemy combatants judged by military courts is fine. However, having people tried in military courts implicitly assumes that they are enemy combatants, which is a pretty damning assumption when there is little concrete evidence to base it on in some cases.

  13. What cases do you have in mind?

    I guess my concern is that Gary and you and Robert are remaining so vague. Yes, of course some people could be there inappropriately. People are in U.S. jails inappropriately too? They need habeas corpus rights. Obama put that in place as soon as he got into office. Otherwise, I'm not sure what to make of these "well this assumes they were enemy combatants". The list is here: http://projects.washingtonpost.com/guantanamo/

    Got any specific thoughts?

    I mean, by these "well... uh... maybe they shouldn't be there" standards I don't see how we could ever have any military prisons!

    Some of them may not belong there. That's why they need to be reviewed. That's why I initially took this to be good news.

    I'm not sure what will satisfy these concerns which are still being made in an extremely vague way - except to not have military prisons and not take prisoners at all!

  14. The question at hand is "are these enemy combatants that oughta be held". That sounds like a military court question, does it not. Nickn, your only point seems to be that that needs to be fairly answered. I agree!

    Is the suggestion that the military is unjust?

    Is the suggestion that they are unqualified to make these rulings?

    Is the suggestion that the military courts don't have jurisdiction?

    All of these strike me as falling flat. If we agree we need to make sure these people belong here and are being treated appropriately, then by all means let's do that!

  15. Daniel,

    Let me concede that I'm out of my depth. Not a lawyer or scholar of military law. However, with the amount of uncertainty surrounding how, where, and by whom some of these prisoner have been detained (extraordinary rendition itself suggests more than a little extra-legality in the whole process that has been employed) I think a very open process is now required simply to set things straight. I think that military courts convened outside the states are not likely to produce the kind of openness I would hope for.


All anonymous comments will be deleted. Consistent pseudonyms are fine.