Prolonged Detention: Whip Cream On Manure

( – promoted by buhdydharma )

cross posted from The Dream Antilles

Put in the simplest terms, the proponents of “prolonged detention” think that dressing up preventive detention with post detention procedures will make it constitutional.  Procedures= whip cream.  Detention= manure.  This will not make the prolonged detention policy palatable.  It will not preserve the sentiments behind the US Constitution.  And a debate about how many dollops of whipped cream are required will completely miss the point.  The point imo is that prolonged detention is in a single word unacceptable. It should not be countenanced. The idea should be shelved and abandoned.

The NY Times tell us that the “prolonged detention” plan is still mostly theoretical, that there aren’t real details, but there’s a frightening, general plan:

Mr. Obama has so far provided few details of his proposed system beyond saying it would be subject to oversight by Congress and the courts. Whether it would be constitutional, several of the legal experts said in interviews, would most likely depend on the fairness of any such review procedures.

Ultimately, they suggested, the question of constitutionality would involve a national look in the mirror: Is this what America does?

“We have these limited exceptions to the principle that we only hold people after conviction,” said Michael C. Dorf, a constitutional law professor at Cornell. “But they are narrow exceptions, and we don’t want to expand them because they make us uncomfortable.”

In his speech on antiterrorism policy Thursday, Mr. Obama, emphasizing that he wanted fair procedures, sought to distance himself from what critics of the Bush administration saw as its system of arbitrary detention.

“In our constitutional system,” Mr. Obama said, “prolonged detention should not be the decision of any one man.”

I want to repeat myself.  The proponents of “prolonged detention” think that dressing up detention with post detention procedures will make it constitutional.  Procedures= whip cream.  Detention= manure.  Please recall that what the current Supreme Court says is Constitutional is the final word on a topic.  So the practical question the administration faces is just how much seeming fairness in procedure do they have to provide to satisfy a rightwing dominated Supreme Court that defers regularly to assertions of national security and expertise by the executive.  The answer?  Not so much.  Not so much at all.  A little bit more than Bush.  Maybe half a dollop.

But even aside from that, and the historical willingness of the Supreme Court to endorse totalitarian measures, like detention of Japanese citizens in the face of claims of national security threats, procedural protections are only as good as the person making the decision.  Let me explain this:  Substantive measures like detention of scary people will 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 institutional rules.  At the time, the big, national push was to require that prisoners receive a hearing before they were thrown in solitary confinement or lost good time or had to endure other serious punishments.  We got federal courts to order that the accused prisoners would 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 with significant but not unlimited procedural safeguards.  The prisons were enjoined to follow these rules.  Great.  An apparent victory for the prisoners, right?  Wrong.  Did any fewer prisoners end up in solitary?  No.  Did any fewer prisoners argue that they had been unfairly punished? No.  Whoever held the hearing made whatever decision s/he thought should be made.  The result was that the hearings slowly became recognized kangaroo courts.  The procedural protections were there in theory only.

How could this happen with all of court ordered “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.”  The prisons wanted to put prisoners in special housing units for long periods of time.  Guess what?  They did that.  The procedures were there so they could argue later on, “But you had a fair, due process hearing in full compliance with what the federal court ordered.”  In some ways, and this is frightening, it made confinement easier.

The next question is who.  What lucky people, who will be initially chosen to experience “prolonged detention” in all its wonderful procedural glory?  The Times says:

Mr. Obama’s proposal was a sign of the sobering difficulties posed by the president’s plan to close the Guantánamo prison by January. The prolonged detention option is necessary, he said, because there may be some detainees who cannot be tried but who pose a security threat.

These, he said, are prisoners who in effect remain at war with the United States, even after some seven years at Guantánamo. He listed as examples detainees who received extensive explosives training from Al Qaeda, have sworn allegiance to Osama bin Laden or have otherwise made it clear that they want to kill Americans.

Did you get that?  There are prisoners we have now who we cannot try because we have no admissible evidence (maybe they were tortured, maybe there was no evidence in the first place that they committed a crime, who knows why they’ve been locked up for 7 years or more?) but, and this is the big but, even though there’s no proof they did anything, and there’s nothing they could be tried for, they still are claimed to “pose a security threat,” one that requires them to be locked up forever.

Take a look at the nearby precedents for detention without proof of crime: sexual predators who have finished their prison terms, psychiatric inmates who are an imminent danger to themselves and others, people who represent a risk to the community who have been charged but not yet convicted of serious crimes.  In other words, the scary people.  So, of course, the scary people from Gitmo might become a fourth category.  Put another way, people come up to those who defend such people at cocktail parties and ask, wide eyed, “How can you defend such a person?”

The legal question might be parsed as how many dollops of whip cream procedure are required to turn detention into a seeming dessert.  The current proposals, as general as they are, give cold comfort: the decision shouldn’t be made by one person, there should be oversight from congress and the courts.  Congress, of course, has provided such masterful oversight in the past 8 years that it’s rational to rely on that. Not. And the Courts?  You’ve got to be kidding.  Show me a single court when faced with a claim of national security that has denied the claim outright.  

My point on this? The people, yes, Virginia, they are people, presently held in Gitmo need to be tried or released.  There should be no third category, there should be no “prolonged detention.”  The correct approach to this issue is to stop trying to make “new regimes,” new categories, new inventions.  The correct approach 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 if we possibly can. And if we cannot try them, the required step in the US is to release them.

I am alarmed, but not surprised that so many people are ready to make excuses for the Government on this issue.  To me, this is one proposal that needs for the sake of our country to be abandoned.

26 comments

Skip to comment form

  1. Thanks for reading.  I hope you have a great 3-day weekend.  

  2. … a real mess of an issue, imo.

    First, it’s just hard for me as a non-lawyer to understand exactly what is being said here by Obama.

    I’ve read it over and over again.  He is stating as fact that there are folks who wish to continue to attack the US and so they are too dangerous to be released.

    Then why can’t they just be tried and found guilty?

    Over at the Orange there’s huge discussions going on where folks are saying Obama is right when there’s not even a plan being put forward by him, only his idea for a plan.  It boggles the mind.

    To me, the heart of the matter is what you quoted above — even if we can legally do this, why should we?

    “We have these limited exceptions to the principle that we only hold people after conviction,” said Michael C. Dorf, a constitutional law professor at Cornell. “But they are narrow exceptions, and we don’t want to expand them because they make us uncomfortable.”  

    You also make a very important point in bringing up how the kind of “oversight” being proposed rarely comes to pass in any effective measure.

    This is giving me a headache!  Thank you so much for this essay — it clarifies the issue for me in a lot of ways.  But I still haven’t come to any conclusions, probably because of the headache, lol.

  3. have a special revulsion to Obama’s speech because we are trained from Day 1 to understand the importance of procedural Due Process to our entire system of justice.

    Constitutional provisions are not a menu of options that the President can arbitrarily decide which to follow at his convenience.  They are instead a seamless web of mandatory requirements that the President must follow in every circumstance with every person he detains.

    What is most galling to me about is that Obama thinks he can pick and choose which rights different prisoners are allowed to have – some get released, some get a trial in Federal Court, some get locked away in a permanent gulag – all based simply on the President’s secret and non-reviewable determination of who he thinks might be dangerous.

    I fear for the students this man taught Constitutional Law to, because clearly his understanding of the Equal Protection clause needs a lot more study.  

  4. ..slogs its way through our legislative branch and the court challenges that most certainly would arise in response to it?

    Is this just a way to kick the issue down the road rather than dealing with it?  President Obama said his administration would confront the detainee issues and not run away from them.

    But how could he expect such a plan as prolonged detention to magically sail through the processes?

  5. Like leaving the pie untouched.

    • zett on May 24, 2009 at 7:16 am

    Digby made the excellent point that there are already terrorists who want to kill us on the loose – and keeping a handful of scary guys unconstitutionally detained is supposed to keep us safe?

    Sigh.

Comments have been disabled.