“Preventive Detention” And Prisoners Of War

Glenn Greenwald writes:

In the wake of Obama’s speech yesterday, there are vast numbers of new converts who now support indefinite “preventive detention.”  It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of “preventive detention” and Obama’s related detention proposals (military commissions).

I hope by now my ability to disagree with and criticize President Obama is not questioned. Thus, when I say that I think there may be merit in a detention regime (the military commissions proposal seems fatally flawed to me as described) that detains known combatants in a manner that is compliant with the Constitution and the Geneva Convention, I hope my argument can be addressed seriously. I do not think Glenn’s post considers the possibility that President Obama’s proposal may in fact be such a Geneva Convention compliant detention regime. More . . .


Glenn writes:

It’s important to be clear about what “preventive detention” authorizes.  It does not merely allow the U.S. Government to imprison people alleged to have committed Terrorist acts yet who are unable to be convicted in a civilian court proceeding.  That class is merely a subset, perhaps a small subset, of who the Government can detain.  Far more significant, “preventive detention” allows indefinite imprisonment not based on proven crimes and or past violations of law, but of those deemed generally “dangerous” by the Government for various reasons (such as, as Obama put it yesterday, they “expressed their allegiance to Osama bin Laden” or “otherwise made it clear that they want to kill Americans”). That’s what “preventive” means:  imprisoning people who the Government claims are likely do engage in violent acts in the future because they are alleged to be “combatants.”


Once known, the details of the proposal could — and likely will — make this even more extreme by extending the “preventive detention” power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a “combatant.”  After all, once you accept the rationale on which this proposal is based — namely, that the U.S. Government must, in order to keep us safe, preventively detain “dangerous” people even when they can’t prove they violated any laws — there’s no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly “dangerous” combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S.

(Emphasis supplied.) Glenn portrays the power to indefinitely detain “alleged combatants” as something new. Clearly in a theater of war it is not. (Glenn’s objection appears to be more directed at the scope of the “theater of war.” and yet, the reality is that terrorists do operate all over the globe. In effect, there is an expanded “theater of war.)) We used to call such detainees prisoners of war, and the Geneva Conventions applied to such detentions.

To me that is the key point to answering Glenn’s question “when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it[?]” I opposed it BECAUSE the Bush Administration insisted that the Geneva Conventions did NOT apply to the detentions.

This is no small matter. It is important to remember that the key point of contention on detention policies was the application of the Geneva Conventions and the Constitution. For example, in Hamdi v. Rumsfeld, the issue was presented thusly:

This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an “enemy combatant,” and that this status justifies holding him in the United States indefinitely-without formal charges or proceedings-unless and until it makes the determination that access to counsel or further process is warranted.

(Emphasis supplied.) In essence, the Bush Administration denied the applicability of the Geneva Conventions, but of course the case turned on the applicability of the habeas statute then in effect. But the concept is not dissimilar to what is mandated by the Geneva Conventions. For example, the Hamdi Court described it this way:

In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive’s asserted justifications for that detention have basis in fact and warrant in law. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Addington v. Texas, 441 U.S. 418, 425-427 (1979). He argues that the Fourth Circuit inappropriately “ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely,” Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be “meaningful judicial review.” App. 291.

The Bush Administration argued that the courts had no say in the matter. The Court rejected the Bush Administration argument:

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’ ” (quoting Ward v. Monroeville, 409 U.S. 57, 61-62 (1972)). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ ” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.

Of course the devil is in the detail of the process that would be afforded a detainee. In Boumediene v. Bush, the Supreme Court found the Bush Administration’s Combatant Status Review Trials to be inadequate constitutionally. The Court presented the question in this fashion:

[T]he question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeals, see DTA §1005(e), provides an adequate substitute. Congress has granted that court jurisdiction to consider:

“(i) whether the status determination of the [CSRT] … was consistent with the standards and procedures specified by the Secretary of Defense … and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” §1005(e)(2)(C), 119 Stat. 2742.

The answer was no – the Bush Administration’s review did not comply with the Constitution:

We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained-though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.

. . . For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting. See Townsend v. Sain, 372 U. S. 293, 313 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1, 5 (1992) . Here that opportunity is constitutionally required.

The Boumediene Court found that the Bush Administration scheme did not meet these requirements. An Obama Administration detention regime would have to and even more, it can exceed the bare minimum constitutional requirements. President Obama yesterday said:

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

(Emphasis supplied.) If President Obama is true to his word, I believe a fair, constitutional detention regime can be implemented, one which conforms with our obligation under the Geneva Conventions. Of course, we must be vigilant and insure a fair process is implemented. But this is always true, no matter what the President says.

Greenwald rejects the POW comparison:

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it’s normal for “POW’s” to be held without trials, that argument was deeply misleading.  And it’s no less misleading when made now by Obama supporters.  That comparison is patently inappropriate for two reasons:  (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this “war” will not be over for decades, if ever, which means — unlike for traditional POWs, who are released once the war is over — these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional “POWs” are ones picked up during an actual battle, on a real battlefield, wearing a uniform, while engaged in fighting.  The potential for error and abuse in deciding who was a “combatant” was thus very minimal.  By contrast, many of the people we accuse in the “war on terror” of being “combatants” aren’t anywhere near a “battlefield,” aren’t part of any army, aren’t wearing any uniforms, etc.  Instead, many of them are picked up from their homes, at work, off the streets.  In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

With all due respect to Glenn, it is HIS argument that resembles that of Bush supporters – the ones they made when arguing the Geneva Conventions do not apply to the detainees. It is simply wrong to argue that the Geneva Conventions does not apply to unconventional combatants and it is wrong to argue, in my view, that a fiar and sensible detention policy can not be devised for such unconventional combatants. In the end, Greenwald’s real objection it seems to me is this:

In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

It is precisely this that is objectionable and which must be addressed and what President Obama promises to address. Of course, promises are easy. Keeping them is harder.  But, I respectfully disagree with Glenn’s take on this matter.


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  1. defines prisoners of war to include:

       * 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces

       * 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:

             o that of being commanded by a person responsible for his subordinates;

             o that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);

             o that of carrying arms openly;

             o that of conducting their operations in accordance with the laws and customs of war.

       * 4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

       * 4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.

       * 4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

       * 4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

       * 4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.

    I agree that Glenn is slicing the salami a bit fine with his argument about uniforms, but surely you are not suggesting that people who were not involved in the fighting, but were instead simply sold off to the Americans to satisfy some Afgani warlord’s personal blood feud should be considered combatants?

  2. but when do the detainees get released?

    POWs are released when the war is over.

    When is this war over?

    Or is every sentence a life sentence, no matter the ‘crime?’

    Also, too, you betcha….

    Has their been any actual thought about what this new legal framework would look like? Or is it still purely theoretical?

    Of course it always makes me nervous when we have to invent whole new systems to justify punishing our enemies…

    ….not JUST for what they have done…

    ….but for what they MIGHT do in the future, maybe, because we say so, on evidence that is PATENTLY unobtainable.

  3. I have to read this a few more times to make any kind of intelligent comment.

    I am worried about the whole frame of “war on terror,” and that under the present definition there is no end, and that does impact our detaining folks in a POW kind of way.

    I also have problems with detaining someone who “could” be a threat in the future.

    But I still am not quite sure what Obama is asking for and what he and Congress will come up with.

    • dkmich on May 22, 2009 at 8:24 pm

    Given all of the recently exposed intrigue on the tubz, I wasn’t certain it was really you.  

  4. After all, once you accept the rationale on which this proposal is based … there’s no coherent reason whatsoever to limit that power to people already at Guantanamo

    This sounds remarkably like Conservative logic in voicing opposition to gay marriage:

    After all, once you accept the rationale on which this proposal gay marriage is based … there’s no coherent reason whatsoever to limit that power to people already at Guantanamo similar benefits to polygamists, pedophiles (insert scary group here).

    The construct of this overreach is based on a thought process that if, for example, a “bad” law is passed, legal limitations on subsequent laws along similar lines are rendered impotent. Thus, all laws that follow in its wake can only expand upon the original and can never be rejected nor diminished in scope upon review.

  5. We are at war.

    No matter where we pick them up it is the war zone.

    The war will never be over.

    Ipso facto.. It is legal to hold them forever as POWs, so long as we abide by the Geneva conventions.

    Is that about right?

  6. Always good to have your contributions, A.

    • sharon on May 22, 2009 at 10:18 pm


    great to see you here again!

    i will reread your analysis – coming from you i think it is worth a second look – but doubt i am likely to be able to get behind indefinite detention without trial of anyone for any reason.  

    • sharon on May 22, 2009 at 10:37 pm

    but what about the next president to be elected?  do we codify this with an only under obama clause?  god forbid but what if there was another 9/11, the right wing media ran with it against obama, the spinless congress went along, and someone like cheney, rumsfeld, or, more likely, colin powell decided to run for election – and won?  

  7. your take on this as for a non lawyer it is torturous, to try and decipher what is going on, in regards to our laws. It seems like whatever they are doing bushies or the new administration a twisting of the law. Does this new regime of law regarding detainees meet the standards of international law regarding detainees or POW’s. How can there be POW’s in a war that is ongoing and does not have a nation state as it’s combatant but instead is against a never ending, hard to define action (for lack of a better term). Do those they detain have habeas corpus? The preventive detention aspect is troubling sounds exactly like preemtive war,

    Good to read you again here, these latest developments have made me think of you a lot. Thanks Armando.  

  8. A short reason why.  Procedural protections are only as good as the person making the decisions.  That’s why substantive measures always trump procedural protections.

    Years ago I was involved in representing prisoners (in prisons and mental institutions) who were punished by their holders for violating rules.  At the time, the big push was to require that they receive a hearing before they were thrown in solitary.  We got courts to order that they have a prior hearing unless it was an emergency.  If it was an emergency, they could be locked up first and then be given a “due process” hearing.  The prisons were enjoined to follow these rules.  Great.  Did any fewer prisoners end up in solitary?  No.  Did any fewer prisoners argue that they had been unfairly punished? No.  How could this happen with all of the “due process” protections the inmates had?  Hah.  As a colleague of mine said about this very issue, “You can put whip cream on dung, but it doesn’t make it a dessert.”

    And so it is with “preventive detention.”  It’s dung.  And the contest is about how many dollops of whip cream make it a dessert.

    The correct approach to this is to stop trying to make “new regimes.”  It’s is to stop making believe that what the US is doing in the GWOT is a “war.”  And that the alleged participants in terror are some kind of special “enemy combatants.”  They’re not.  They’re more criminals than they are soldiers.  And we should imo be trying them as criminals.

    I am sorry that Armando pulled his comments. If I made an argument as bogus as the one he’s making, I’d pull the diary too.  

  9. Welcome to my world.

    Say what you believe, and don’t run away when the going gets tough.  

    If people want to leave because you’re here, let them leave.  If you want to leave because you can’t take the heat, …

    As for the issue, Democratic congresscritters won’t stand for principle with respect to health care.  They won’t stand for principle with respect to war crimes.  They won’t stand for principle with respect to wall-street subsidies.  They won’t stand for principle with respect to locking up prisoners in our super-max penitentiary.  They won’t stand for principle with respect to victimless crimes.  They won’t stand for principle with respect to preemptive war.  Why on earth would anyone expect them to stand for principle with respect to releasing suspected terrorists who can’t be prosecuted because the evidence against them was gathered by means of torture?

    If it were up to me, if we can’t prosecute these folks and don’t want to release them, then assign a secret service detail to them and give them a place to live and let them go.  We’ve already got the most dangerous enemy combatant loose in a suburb of Dallas under similar conditions.

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