[CitizensTruth] Glenn Greenwald on preventive detention proposal

[Jay Becker]

Yes, as individuals, there is little we can do, but we aren't just individuals, we're also part of communities and a society, the US, that is raining this terror down on other people and threatening more, not only 'over there' either. 

I think this is a very good time to act. Obama refuses to release 2000 torture photos (think about that number!) from at least half a dozen US facilities (think about how widespread that means this is) because seeing what has been done will shatter illusions that this was done "by a few individuals," as Obama alleged again last week, and increase exponentially the demand that those responsible for ordering all this be prosecuted. This is a very sticky situation for Obama and our determined actions now could (no guaranties in this world) make a difference, crack open the debate, dis-illusion people in a good way. 

It won't happen without that, and we're here where we can make a difference. I wonder what people being hit by drones in Pakistan and bombs in Afghanistan would think about us protesting? What difference would it make in the world if there was a loud voice of protest here in the US that wasn't loyal to the government doing this to them AND wasn't supporting the fundamentalist opposition, the only two choices they see in front of them.

Here's a thoughtful piece from a young writer on Revolution that I recommend: 
Silence Plus Torture 
                Equals Complicity 
              It’s
spring 2009, students were finishing final exams and graduating,
looking at the life ahead of them. Young people are filling their
summers with activities and friends.
              At around
the same time on May 4, U.S. airstrikes massacred 147 people in
Afghanistan, including teenagers. What were their hopes and dreams,
what do their lives count for? Do WE have a responsibility to THEM? And
if so, what is it?

              At the same time we have now
read memos that show that this government, from its very highest
levels, held detainees and legally justified their torture; that they
were, and some are still,  being held indefinitely not knowing why, or
when, or if, they will be tried, kept in solitary confinement,
interrogated for up to 20 hours a day, brutally tortured or even
killed. And now, we have also been told by Barack Obama that extensive
photographs documenting this torture are going to be suppressed because
if people saw them it might “inflame” the opinion of Americans, and
people around the world, and endanger the troops in Iraq. Do WE have a
responsibility to society, to humanity, to oppose this?
Read on at 
http://revcom.us/a/166/torture-editorial-en.html

Thanks for sharing your thoughts!
Jay

    Stop thinking like an American, 
Start thinking about humanity!


--- On Wed, 5/27/09, Robin Migalla <rmigalla at earthlink.net> wrote:

From: Robin Migalla <rmigalla at earthlink.net>
Subject: Re: [CitizensTruth] Glenn Greenwald on preventive detention proposal
To: "truth seekers" <citizenstruth at six.pairlist.net>
Date: Wednesday, May 27, 2009, 2:49 PM

Hi Jay, Andrew, and the rest of our Truth seeking community,

I agree with you, Andrew.  Yes, Jay, thanks for your post.  I always enjoy 
analysis based on facts rather than emotional reactions.  It was a truly 
refreshing piece.  Andrew, I believe your question gets to the heart of 
what we as a group are trying to do.  I wish I had the answer.  For me, 
I've come to realize I'm unable to stop anyone from doing anything.  The 
best I action I can take (interesting word here, take) is offer peace where 
I am right now.

Cheers,
Robin

-----Original Message-----
From:    andrew ritter [SMTP:aroyboy44 at hotmail.com]
Sent:    Wednesday, May 27, 2009 12:58
To:    futurenotwritten at yahoo.com; truth seekers
Subject:    Re: [CitizensTruth] Glenn Greenwald on preventive detention 
proposal


Thanks for this Jay,

What an important topic that is getting very little play in the msm

"Preventative Detention" is clearly a dark awful piece of fascist nonsense 
that violates the constitution and opens the door for creepy things like 
thought crimes and being detained indefintely for your beliefs.

People continue to defend the Obama administration and I would argue they 
are stuck in an unhealthy mind pattern where they allow their fantasy of 
who he is to be overshadowed by the reality of the actions the 
administration continues to take.

The question then becomes what real action can we citizens take that would 
help to stop this proposal from going through?






Date: Sun, 24 May 2009 07:59:59 -0700
From: futurenotwritten at yahoo.com
To: citizenstruth at six.pairlist.net
Subject: [CitizensTruth] Glenn Greenwald on preventive detention proposal

This is the best 'dispassionate' dissection of the Obama administration's 
sweeping proposals that I have read yet. I urge everyone to consider this, 
and the questions he poses, seriously, and share your thoughts, please!

Jay


http://www.salon. com/opinion/ greenwald/ 2009/05/22/ preventive_ 
detention/ print.html



Facts and myths about Obama's preventive detention proposal

Is a system of indefinite detention with no charges a standard or radical 
idea?



Salon.com

Glenn Greenwald



May. 22, 2009



[Updated below - Update II (Interview with ACLU) - Update III - Update IV - 
Update V - Update VI]



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'll have a
podcast discussion on this topic a little bit later today with the
ACLU's Ben Wizner, which I'll add below, but until then, here are some
facts and other points worth noting:



(1) What does "preventive detention" allow?



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 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 because
the Government claims they are likely to 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.



(2)  Are defenders of Obama's proposals being consistent?



During the Bush years, it was common for Democrats to try to convince
conservatives to oppose Bush's executive power expansions by asking
them: "Do you really want these powers to be exercised by Hillary
Clinton or some liberal President?"



Following that logic, for any Democrat/progressiv e/liberal/ Obama
supporter who wants to defend Obama's proposal of "preventive
detention," shouldn't you first ask yourself three simple questions:



(a) what would I have said if George Bush and Dick Cheney advocated a
law vesting them with the power to preventively imprison people
indefinitely and with no charges?;



(b) when Bush and Cheney did preventively imprison large numbers of
people, was I in favor of that or did I oppose it, and when right-wing
groups such as Heritage Foundation were alone in urging a preventive
detention law in 2004, did I support them?; and



(c) even if I'm comfortable with Obama having this new power because I
trust him not to abuse it, am I comfortable with future Presidents --
including Republicans -- having the power of indefinite "preventive
detention"?



(3)  Questions for defenders of Obama's proposal:



There are many claims being made by defenders of Obama's proposals
which seem quite contradictory and/or without any apparent basis, and
I've been searching for a defender of those proposals to address these
questions:



Bush supporters have long claimed -- and many Obama supporters are now
insisting as well -- that there are hard-core terrorists who cannot be
convicted in our civilian courts. For anyone making that claim, what is
the basis for believing that? In the Bush era, the Government has
repeatedly been able to convict alleged Al Qaeda and Taliban members in
civilian courts, including several (Ali al-Marri, Jose Padilla, John
Walker Lindh) who were tortured and others (Zacharais Moussaoui,
Padilla) where evidence against them was obtained by extreme coercion.
What convinced you to believe that genuine terrorists can't be
convicted in our justice system?



For those asserting that there are dangerous people who have not yet
been given any trial and who Obama can't possibly release, how do you
know they are "dangerous" if they haven't been tried? Is the
Government's accusation enough for you to assume it's true?



Above all: for those justifying Obama's use of military commissions by
arguing that some terrorists can't be convicted in civilian courts
because the evidence against them is "tainted" because it was obtained
by Bush's torture, Obama himself claimed just yesterday that his
military commissions also won't allow such evidence ("We will no longer
permit the use of evidence -- as evidence statements that have been
obtained using cruel, inhuman, or degrading interrogation methods").
How does our civilian court's refusal to consider evidence obtained by
torture demonstrate the need for Obama's military commissions if, as
Obama himself claims, Obama's military commissions also won't consider
evidence obtained by torture?



Finally, don't virtually all progressives and Democrats argue that
torture produces unreliable evidence? If it's really true (as Obama
defenders claim) that the evidence we have against these detainees was
obtained by torture and is therefore inadmissible in real courts, do
you really think such unreliable evidence -- evidence we obtained by
torture -- should be the basis for concluding that someone is so
"dangerous" that they belong in prison indefinitely with no trial? If
you don't trust evidence obtained by torture, why do you trust it to
justify holding someone forever, with no trial, as "dangerous"?



(4)  Do other countries have indefinite preventive detention?



Obama yesterday suggested that other countries have turned to
"preventive detention" and that his proposal therefore isn't radical
("other countries have grappled with this question; now, so must we").
Is that true?



In June of last year, there was a tumultuous political debate in
Britain that sheds ample light on this question. In the era of IRA
bombings, the British Parliament passed a law allowing the Government
to preventively detain terrorist suspects for 14 days -- and then
either have to charge them or release them. In 2006, Prime Minister
Tony Blair -- citing the London subway attacks and the need to
"intervene early before a terrorist cell has the opportunity to achieve
its goals" -- wanted to increase the preventive detention period to 90
days, but MPs from his own party and across the political spectrum
overwhelmingly opposed this, and ultimately increased it only to 28
days.



In June of last year, Prime Minister Gordon Brown sought an expansion
of this preventive detention authority to 42 days -- a mere two weeks
more. Reacting to that extremely modest increase, a major political
rebellion erupted, with large numbers of Brown's own Labour Party
joining with Tories to vehemently oppose it as a major threat to
liberty. Ultimately, Brown's 42-day scheme barely passed the House of
Commons. As former Prime Minister John Major put it in opposing the
expansion to 42 days:



It is hard to justify: pre-charge detention in Canada is 24 hours;
South Africa, Germany, New Zealand and America 48 hours; Russia 5 days;
and Turkey 7? days.



By rather stark and extreme contrast, Obama is seeking preventive
detention powers that are indefinite -- meaning without any end,
potentially permanent. There's no time limit on the "preventive
detention." Compare that power to the proposal that caused such a
political storm in Britain and what these other governments are
empowered to do. The suggestion that indefinite preventive detention
without charges is some sort of common or traditional scheme is clearly
false.



(5)   Is this comparable to traditional POW detentions?



When Bush supporters used to justify Bush/Cheney detention policies by
arguing that it's normal for "Prisoners of War" 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 military 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 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.



Anyone who doubts that should just look at how many Guantanamo
detainees were accused of being "the worst of the worst" yet ended up
being released because they did absolutely nothing wrong. Can anyone
point to any traditional POW situation where so many people were
falsely accused and where the risk of false accusations was so high?
For obvious reasons, this is not and has never been a traditional POW
detention scheme.



During the Bush era, that was a standard argument among Democrats, so
why should that change now? Here is what Anne-Marie Slaughter -- now
Obama's Director of Policy Planning for the State Department -- said
about Bush's "POW" comparison on Fox News on November 21, 2001:



Military commissions have been around since the Revolutionary War. But
they've always been used to try spies that we find behind enemy lines.
It's normally a situation, you're on the battlefield, you find an enemy
spy behind your lines. You can't ship them to national court, so you
provide a kind of rough battlefield justice in a commission. You give
them the best process you can, and then you execute the sentence on the
spot, which generally means executing the defendant.



That's not this situation. It's not remotely like it.



As for duration, the U.S. government has repeatedly said that this
"war" is so different from standard wars because it will last for
decades, if not generations. Obama himself yesterday said that "unlike
the Civil War or World War II, we can't count on a surrender ceremony
to bring this journey to an end" and that we'll still be fighting this
"war" "a year from now, five years from now, and -- in all probability
-- 10 years from now." No rational person can compare POW detentions of
a finite and usually short (2-5 years) duration to decades or life in a
cage. That's why, yesterday, Law Professor Diane Marie Amann, in The
New York Times, said this:



[Obama] signaled a plan by which [Guantanamo detainees] - and perhaps
other detainees yet to be arrested? - could remain in custody forever
without charge. There is no precedent in the American legal tradition
for this kind of preventive detention. That is not quite right:
precedents do exist, among them the Alien and Sedition Acts of 1798 and
the Japanese internment of the 1940s, but they are widely seen as low
points in America's history under the Constitution.



There are many things that can be said about indefinitely imprisoning
people with no charges who were not captured on any battlefield, but
the claim that this is some sort of standard or well-established
practice in American history is patently false.



(6)  Is it "due process" when the Government can guarantee it always wins?



If you really think about the argument Obama made yesterday -- when he
described the five categories of detainees and the procedures to which
each will be subjected -- it becomes manifest just how profound a
violation of Western conceptions of justice this is. What Obama is
saying is this: we'll give real trials only to those detainees we know
in advance we will convict. For those we don't think we can convict in
a real court, we'll get convictions in the military commissions I'm
creating. For those we can't convict even in my military commissions,
we'll just imprison them anyway with no charges ("preventively detain"
them).



Giving trials to people only when you know for sure, in advance, that
you'll get convictions is not due process. Those are called "show
trials." In a healthy system of justice, the Government gives everyone
it wants to imprison a trial and then imprisons only those whom it can
convict. The process is constant (trials), and the outcome varies
(convictions or acquittals).



Obama is saying the opposite: in his scheme, it is the outcome that is
constant (everyone ends up imprisoned), while the process varies and is
determined by the Government (trials for some; military commissions for
others; indefinite detention for the rest). The Government picks and
chooses which process you get in order to ensure that it always wins. A
more warped "system of justice" is hard to imagine.



(7)  Can we "be safe" by locking up all the Terrorists with no charges?



Obama stressed yesterday that the "preventive detention" system should
be created only through an act of Congress with "a process of periodic
review, so that any prolonged detention is carefully evaluated and
justified." That's certainly better than what Bush did: namely,
preventively detain people with no oversight and no Congressional
authorization -- in violation of the law. But as we learned with the
Military Commissions Act of 2006 and the Protect America Act of 2007,
the mere fact that Congress approves of a radical policy may mean that
it is no longer lawless but it doesn't make it justified. As Professor
Amann put it: "no amount of procedures can justify deprivations that,
because of their very nature violate the Constitution' s core guarantee
of liberty." Dan Froomkin said that no matter how many procedures are
created, that's "a dangerously extreme policy proposal."



Regarding Obama's "process" justification -- and regarding Obama's
primary argument that we need to preventively detain allegedly
dangerous people in order to keep us safe -- Digby said it best:



We are still in a "war" against a method of violence, which means there
is no possible end and which means that the government can capture and
imprison anyone they determine to be "the enemy" forever. The only
thing that will change is where the prisoners are held and few little
procedural tweaks to make it less capricious. (It's nice that some sort
of official committee will meet once in a while to decide if the war is
over or if the prisoner is finally too old to still be a "danger to
Americans.")



There seems to be some misunderstanding about Guantanamo. Somehow
people have gotten it into their heads is that it is nothing more than
a symbol, which can be dealt with simply by closing the prison. That's
just not true. Guantanamo is a symbol, true, but it's a symbol of a
lawless, unconstitutional detention and interrogation system. Changing
the venue doesn't solve the problem.



I know it's a mess, but the fact is that this isn't really that
difficult, except in the usual beltway kabuki political sense. There
are literally tens of thousands of potential terrorists all over the
world who could theoretically harm America. We cannot protect ourselves
from that possibility by keeping the handful we have in custody locked
up forever, whether in Guantanamo or some Super Max prison in the US.
It's patently absurd to obsess over these guys like it makes us even
the slightest bit safer to have them under indefinite lock and key so
they "can't kill Americans."



The mere fact that we are doing this makes us less safe because the
complete lack of faith we show in our constitution and our justice
systems is what fuels the idea that this country is weak and easily
terrified. There is no such thing as a terrorist suspect who is too
dangerous to be set free. They are a dime a dozen, they are all over
the world and for every one we lock up there will be three to take his
place. There is not some finite number of terrorists we can kill or
capture and then the "war" will be over and the babies will always be
safe. This whole concept is nonsensical.



As I said yesterday, there were some positive aspects to Obama's
speech. His resolve to close Guantanamo in the face of all the
fear-mongering, like his release of the OLC memos, is commendable. But
the fact that a Democratic President who ran on a platform of restoring
America's standing and returning to our core principles is now
advocating the creation of a new system of indefinite preventive
detention -- something that is now sure to become a standard view of
Democratic politicians and hordes of Obama supporters -- is by far the
most consequential event yet in the formation of Obama's civil
liberties policies.



UPDATE: Here's what White House Counsel Greg Craig told The New Yorker's 
Jane Mayer in February:



"It's possible but hard to imagine Barack Obama as the first President
of the United States to introduce a preventive-detentio n law," Craig
said. "Our presumption is that there is no need to create a whole new
system. Our system is very capable."



"The first President of the United States to introduce a
preventive-detentio n law" is how Obama's own White House Counsel
described him. Technically speaking, that is a form of change, but
probably not the type that many Obama voters expected.



UPDATE II: Ben Wizner of the ACLU's National Security Project is the
lead lawyer in the Jeppesen case, which resulted in the recent
rejection by the 9th Circuit Court of Appeals of the Bush/Obama state
secrets argument, and also co-wrote (along with the ACLU's Jameel
Jaffer) a superb article in Salon in December making the case against
preventive detention. I spoke with him this morning for roughly 20
minutes regarding the detention policies proposed by Obama in
yesterday's speech. It can be heard by clicking PLAY on the recorder
below. A transcript will be posted shortly.



UPDATE III: Rachel Maddow was superb last night -- truly superb -- on the 
topic of Obama's preventive detention proposal:



UPDATE IV: The New Yorker's Amy Davidson compares Obama's detention
proposal to the internment of Japanese-Americans during World War II
(as did Professor Amann, quoted above). Hilzoy, of The Washington
Monthly, writes: "If we don't have enough evidence to charge someone
with a crime, we don't have enough evidence to hold them. Period" and
"the power to detain people without filing criminal charges against
them is a dictatorial power." Salon's Joan Walsh quotes the Center for
Constitutional Rights' Vincent Warren as saying: "They're creating,
essentially, an American Gulag." The Philadelphia Inquirer's Will Bunch
says of Obama's proposal: "What he's proposing is against one of this
country's core principles" and "this is why people need to keep the
pressure on Obama -- even those inclined to view his presidency
favorably."



UPDATE V: The Atlantic's Marc Ambinder -- who is as close to the Obama
White House as any journalist around -- makes an important point about
Obama that I really wish more of his supporters would appreciate:



[Obama] was blunt [in his meeting with civil libertiarians] ; the
[military commissions] are a fait accompli, so the civil libertarians
can either help Congress and the White House figure out the best way to
protect the rights of the accused within the framework of that
decision, or they can remain on the outside, as agitators. That's not
meant to be pejorative; whereas the White House does not give a
scintilla of attention to its right-wing critics, it does read, and
will read, everything Glenn Greenwald writes. Obama, according to an
administration official, finds this outside pressure healthy and useful.



Ambinder doesn't mean me personally or exclusively; he means people who
are criticizing Obama not in order to harm him politically, but in
order to pressure him to do better. It's not just the right, but the
duty, of citizens to pressure and criticize political leaders when they
adopt policies that one finds objectionable or destructive. Criticism
of this sort is a vital check on political leaders -- a key way to
impose accountability -- and Obama himself has said as much many times
before.



It has nothing to do with personalities or allegiances. It doesn't
matter if one "likes" or "trusts" Obama or thinks he's a good or bad
person. That's all irrelevant. The only thing that matters is whether
one thinks that the actions he's undertaking are helpful or harmful. If
they're harmful, one should criticize them. Where, as here, they're
very harmful and dangerous, one should criticize them loudly. Obama
himself, according to Ambinder, "finds this outside pressure healthy
and useful." And it is. It's not only healthy and useful but absolutely
vital.



UPDATE VI: Bearing in mind what Obama repeatedly pledged to do while
running, this headline from The New York Times this morning is rather
extraordinary:



As Greg Craig put it: "hard to imagine Barack Obama as the first
President of the United States to introduce a preventive-detentio n
law."



-- Glenn Greenwald

    Stop thinking like an American,
Start thinking about humanity!


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