President Obama’s Orwellian New Category of “Prolonged Detention”

Submitted by Anonymous on Sat, 05/23/2009 - 2:14pm. Guest Contribution
By Elliot Cohen for BuzzFlash

On May 13, in a Washington court filing, the Obama Justice Department eliminated the category of “unlawful enemy combatant,” which the Bush administration had built into the 2006 Military Commissions Act for purposes of detaining suspected terrorists without due process. But now President Obama wants to replace this category with a new system of “prolonged detention” that could conceivably keep detainees in prison into perpetuity in order to prevent crimes they have not yet committed. Add to this Obama’s continuation of the Bush administration’s program of warrantless spying on millions of Americans, and the recipe for abuse is chilling.

According to the old definition of “unlawful enemy combatant” included in the 2006 Military Commissions Act, an unlawful enemy combatant is "an individual engaged in hostilities against the United States who is not a lawful enemy combatant." In other words, if the government suspects that an individual poses a threat to national security, he can be detained as an “unlawful enemy combatant.” But the Obama has now dropped this definition, or has it?

In his May 21 Archives Speech, Obama said, “there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people….” For example, he said, this would include people “who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.”

To deal with these detainees, Obama intends to create a category he has called “prolonged detention” by which “al Qaeda terrorists and their affiliates…that we capture—like other prisoners of war” will be “prevented from attacking us again.” So we will have “prisoners of war” who allegedly “cannot be prosecuted” for their past crimes but who allegedly pose a future threat to national security for reason of which they will be detained for a “prolonged” period of time.

Since the “prisoners of war” in question are suspected terrorists, and since the “war on terrorism” has no definable end in sight, what “prolonged” here could possibly mean boggles the imagination. Will they ever be released or will they die in prison for crimes they have not yet committed? Moreover, if they really cannot be prosecuted, they cannot be accorded the right of habeas corpus unless this means being charged with the potential to commit a future hostile act against America. All this and Obama still contends that ”we must recognize that these detention policies cannot be unbounded” and that’s why his administration “has begun to reshape these standards to ensure they are in line with the rule of law.” But just how Obama could square preventively detaining individuals for crimes they haven’t yet committed with the rule of law is beyond comprehension. Obama appears to have missed a major point about the rule of law. Law is inherently retrospective. It looks back for purposes of holding people criminally or civilly liable for their past actions. It does not look forward to future acts not yet committed.

In the same speech, Obama has also reaffirmed his opposition to an independent commission to look into the war crimes committed by the Bush administration. “That is what I mean when I say that we need to focus on the future,” said Obama. “I recognize that many still have a strong desire to focus on the past. When it comes to the actions of the last eight years, some Americans are angry; others want to re-fight debates that have been settled, most clearly at the ballot box in November.”

Apparently, Obama does indeed want to forget about the past and to focus on the future. He wants to forget about prosecuting members of the Bush administation, including Dick Cheney and George W. Bush, for ordering the torture of detainees. The perpetration of such war crimes he prefers to leave buried in the past, but he wants to look to the future by “prolonged detention” of detainees for crimes they did not yet commit.

The Bush administation’s mistake was to create a separate system of rules to apply to “unlawful enemy combatants” and to do so it gutted major legal protections including habeas corpus. Unfortunately, Obama is now following in the Bush administration’s footsteps.

The legal machinery of our justice system is not incapable of accomodating exceptions. For example, the Miranda Rule, which requires that a suspect be read his or her rights before being arrested, admits of an exception when Mirandizing a suspect would jeopardize the public safety. Thus the courts are equipped to set rational precedents should a detainee present a clear and imminent danger to the public saftety. In fact, it is already a crime to threaten to commit a crime when the intentions are clearly conveyed to the alleged victim and the latter has reasonable belief that the defendant has both the intention and the ability to carry out the threatened crime. However, if a detainee has threatened no crime (in this case, to perpetrate an act of terrorism), then it is unlawful to charge the individual with a crime.

Further, if a terrorist the likes of Khalid Shaikh Mohammed really did mastermind the 9-11 attacks then it is his past acts, not his future ones, that should be the focus of the courts. If there were truly evidence that was not obtained as a result of forced confession, then the evidence legally acquired would still be admissible. On the other hand, if the evidence required to convict a defendant was illegally obtained through torture, then it would be a miscarriage of justice to convict the defendant on the basis of that evidence.

Obama’s new “legal” category of “prolonged detention” sets the dangerous precedent for incarcerating someone for crimes they haven’t yet committed. This raises the Orwellian specter of the “Thought Police” who come in the dead of night to take away dissidents. The Obama Justice Department has already signed onto Bush’s program of warrantless spying on the personal electronic communications of American citizens. The precedent set by preventative incarceration should not be considered apart from such a breakdown of Fourth Amendment protections. The government may not yet be able to read minds but it now has an incredible power to intrude into private communications. Viewed in this light, it is not such a stretch to imagine being preventatively imprisoned for saying something over a wire that the government thought was “hostile against the United States.”

Unfortunately, Obama’s desire to look to the future has blinded him to the need to learn from the past. Perpetrating wrongs in order to redress wrongs does not equate to justice.


Elliot D. Cohen, Ph.D. is a political analyst and media critic. His most recent books are Critical Thinking Unleashed and Ethics and the Legal Profession. He is a first prize winner of the 2007 Project Censored Award.

If he were to do the right thing Constitutionally and let Holder appoint a SP to investigate past high crimes and war crimes, he would not be able to suggest the Orwellian Preventive Detention, which, I'm sorry to say, will likely be approved by Congress.

When that precedent is set, we're done. IMO Didn't he even use the word "regime" in his speech? Chilling.

why it should be such a problem for people to recognize the particularly difficult position we and our President are in at the moment, and I'm not a particularly creative thinker.

In his speech, the President explained the several national security issues he's addressing, and how, and included the last, most problematic one, wherein he stated that ONE PERSON ALONE should not be positioned to 'throw away the key.' (My terms) Congress has to help with this.

Can't people understand that there may be several individuals we KNOW to be highly difficult if not impossible to subject to 'normal' process (partly because 'we' during the last regime failed to acquire and preserve necessary evidence) AND whom we know to be highly inflammatory vis a vis their demonstrated intentions and abilities?

Maybe I'm screwy, but I trust Prez O to recognize such situations, and properly to wrestle with them.

FWIW, I am an attorney.

Preventive Detention means that someone can be locked up indefinitely or for X years for crimes our gov't thinks they MAY commit in the future.

What happens down the road when a repug is prez and decides that Keith or Rachel are threatening or about to threaten the *well-being* of the gov't thru the use of their criticism?

This is a very slippery slope not unlike thought crimes or pre-emptive war. Plus it's illegal, unconstitutional. Innocent until proven guilty in a court of law.

Perhaps Obama changed his mind because he learned about very solid evidence that the individuals definitely WILL commit mass murder if released. That would make it very difficult to be the one who orders the release.

I see your argument and worry about granting that type of power too. But the power to take POWs has already been out there. We can't have judges and juries on battlefields. The individuals in question are more like enemy soldiers than criminals. One way I can see to separate POWs from accused criminals is to grant rights to those who are US citizens or those who are captured on US soil but leave those who don't fall into either category in a separate class.

The POW designation doesn't really fit here though. We need a new system to deal with the captured here. That's just what Obama is trying to do.

I believe we are all on the outside looking in and things are not as cut and dry as they seem.

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/22/AR2009052201894.html?hpid=opinionsbox1

thanks.

that s/o will commit mass murder.... What would that "solid evidence" be? How does Obama accurately predict the future?

be involved in.

Okay I'll play along with that extreme and unlikely scenario for a minute.

Let's say such a thing really could happen. If it did, it wouldn't start with the powers taking out prominent or well-known people. They'd start by taking out numbers of lower-level, semi-anonymous "dissidents" who, comparatively, few would notice or miss or raise a fuss about. But it would be effective, because word would spread, and so would fear. People like Keith and Rachel would wake up one day to find they don't have an audience--people would be too frightened to tune in lest they too be disappeared. And Internet activism will dwindle and wither, except for a few brave souls willing to risk facing a remaining life of detention and torture in some foreign country they've been rendered and "outsourced" to.

The majority of the country would, in fear, conform and submit. And, also out of fear for themselves, they would yell at and distance themselves from and turn in any "troublemakers" who don't conform and submit. Elections would be a show exercise, with outcomes predetermined and controlled by use of untraceable paperless electronic voting systems.

This is an extremely unlikely scenario, of course. Just saying.

It's already happening, but not, to my knowledge of killing people. Sybil Edmonds has been silenced;so have members of Congress who claim "national security." The corporate media certainly has been largely silenced. But I agree that it would start with the smaller fry.

Perhaps a Lee Harvey Oswald, who would take out a very large and prominent JFK.

It is completely over the edge of the cliff.

"Preventive Indefinite Detention" is not only contrary to every major principle this country was founded upon, it is also a kick in the groin to all the democratic advancements since the Magna Carta (1215 AD).


I BELIEVE in our Constitution.
We don't need to throw it away in order to deal with a handful of scary criminals. We already have all the necessary tools to deal with these criminals in the Constitutional way without creating a KING, which is exactly what these NEW POWERS are that oBama is trying to claim for himself.

I can't BELIEVE that anyone, especially at DU, can rationalize acceptance of Obama's position on this issue.


"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."-- Benjamin Franklin

I agree with Franklin.

and I have used the Magna Carta example, too. The other arguments are silly at best.

And we do have present/ongoing examples of political prosecutions in the USA right now.

Citizens should not deny the real risks of this combination.

feel like we are living on the Hollywood set of "The Minority Report"?
Only thing missing are the 'PreCogs':tinfoilhat: :scared:

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."-- Benjamin Franklin

I agree with Mr. Benjamin Franklin, too.

Often I over-state. This "slippery slope" is an understatement. :)

Whither goes this "government of laws and not of men." Once we accept this as policy, there is no turning back.

then you know that without admissible evidence there is no case.
Guilty people go free sometimes, that's the compromise we make for the rule of law.

and is undoubtedly upset (angry/outraged/p'd off) at what cheney et al accomplished, thus leaving him, Prez O, in this almost untenable situation.

I suspect that he thinks/knows that these particular people are just too dangerous to 'go free,' and I accept his thinking on that.

but you can't abandon the rule of law and continue to call this "America".
Obama himself said our values are what make us strong.

Established law says they are either P.O.W.s or suspects.
P.O.W.s should be set free, and suspects should be tried.
We can't make it up as we go along and stack the deck so the suspects can't win.
The burdon of proof is on us and if the prosecution blew the case that's our fault.

and its clear to me that he is prepared to seek a way to address the quandary, using congress and the judiciary, within the rule of law.

I think its foolish for us to continually belabor the fact that its a very difficult problem. We know that, and he knows that. The 3 branches will address the issue, NOT 'make it up as we go along and stack the deck,' and seek to address the problem within the rule of law. This does not mean that existing precedent will or will not be challenged. These are the kinds of issues courts face every day.

We don't know what the resolution(s) will be, but they will be sought, diligently.

How many people will be killed on the roads this weekend? How many dangerous "terrorists" are we creating by killing people in 3 different countries? How many spouses are being beaten up or even killed? Life can be risky. I think we're in more danger of dying from bad water, food or air than from a terrorist freed from GITMO. JMO.

Then there's that pesky Constitution and Bill of Rights and Geneva Conventions.

That's life these days, thanks to cheney and his folks.

???

.

I heard an attorney speaking for one of the inmates, er detainees. His client's release had been ordered by a Federal court circa tail end of 2007 and yet the client is still there.

And so it goes.

this won't end well.

"highly difficult if not impossible to subject to 'normal' process".

and we had one who might have lied about such a thing. I do not believe that Prez O would do such thing. AND I expect that he wouldn't sign on to a process with congress that would permit future prez to do so.

that even if obama would not misuse it that his successors wouldn't either.

It sets a precedent, both parties have engaged in the same behaviour.

:crazy:

They "could" do something. They're all "crazy"....

that we are trying to preserve (or perhaps I should say restore) some of the principles that make this country worth defending against these baddies that you seem so frightened of. These are principles on which this nation was founded and which has made it, for all its flaws, something to be admired.

So the president is in a difficult position...how exactly is that relevant? Either he believes in these principles or he doesn't. Anyone can adhere to lofty ideals when it's easy, safe and convenient. The true test of principle for Obama as president and for us as a nation is whether he and we will stand up for these ideals when doing so might actually cost something.

Its very clear he is prepared to seek a way to address the quandary, using congress and the judiciary, within the rule of law.

The 3 branches will address the issue, and seek to address the problem within the rule of law.
We don't know what the resolution(s) will be, but they will be sought, diligently.

All Obama has to do is obey the Constitution, and there's no quandary at all.

What's very clear is that he will use all three branches (and a healthy dose of flowery rhetoric) to try to make a fundamental violation of one of our most important legal principles seem acceptable. You can be quite sure that whatever "resolution" he comes up with will involve skirting the law (if not ignoring it outright), rather than respecting its spirit.

individuals we KNOW to be highly difficult if not impossible to subject to 'normal' process (partly because 'we' during the last regime failed to acquire and preserve necessary evidence) AND whom we know to be highly inflammatory vis a vis their demonstrated intentions and abilities?

Nothing to it, you say: Obey the Constitution.

And what do mean by KNOW? You've been told for the last 8 years that these people are too dangerous to be allowed to go free, and you've swallowed it without any evidence at all (being told to trust the president's word and that it would be to dangerous to even tell you how the government knows they're too dangerous). The fact is, you know no such thing. Hundreds of these people have been eventually released with no charges against them, because they were just ordinary people that our system was totally and completely wrong about. Of the ones were were right about, the "normal" process has been able to deal with them just fine, thank you. We've convicted far more terrorists through our court system than through any network of secret tribunals and illegal incarceration camps.

As far as the ones that we don't have sufficient evidence on, we do the same thing that we do when there is insufficient evidence against a serial killer or a Mafia don...we obey the Constitution and uphold the rule of law, and let them go until we DO have evidence. Do you have a problem with that? What are you so afraid of?

It's hard to accept that Obama is not serving the American people who elected him, or even the Constitution he swore to defend. He is a prisoner of draconian powers "in the shadows, as it were." Everything he does is dictated by the forces that threaten, blackmail, intimidate, coerce and undermine honesty and justice in American politics.

Oh yeah, and don't forget, "bribe."

But that's the way it is. They control the media, they control the military, they control the financial system, they control the energy and food supplies, and they are very jealous of their control. Just ask Obama.

Who are they? Some vast, right wing conspiracy? No. They are the ruling class, whose interests no longer correspond with those of the American people.

We're not a democracy, we're an oligarchy. That's who Obama is working for now. Accept it and change it.

Prez O is working for We the People, supported by the Constitution.

you are totally drinking the Kool-Aid, aren't you?

.

we KNOW to be highly difficult if not impossible to subject to 'normal' process (partly because 'we' during the last regime failed to acquire and preserve necessary evidence)

Simply put, I don't trust that. I don't trust that after repeated sting operations where the Al Qaeda operatives turn out to be dimwits, set up for acts they didn't have the means to commit. So we do not KNOW that it is impossible to subject these people to normal process, when we have so much reason to think there is no case at all for keeping them incarcerated.

Preemptive war didn't work because all the intelligence was wrong or fabricated.

The theory of preemptive crime is even worse because there is no cost or loss if the government is wrong.

It seems Obama is really considering a Russian type Gulag. It also seems 8 yrs of fear and war mongering has radicalized the US.

There is a good book & movie "The Lives of Others" that portrays what life and society was like in monitoring conducted by the Stasi.

Power is always abused.

and a great example IMO.

it therefore seems premature to complain. Why don't we try, as quickly as possible, to get the innocents released and the more tractable cases into the criminal justice system, then see what else we're dealing with? At this point, a demand for prompt increases of transparency at Guatanamo would seem to be order

It's a stated intention. It's clearly wrong.

a gigantic practical political mess it is. But lots of people have understood the abstract human rights issue for years

President Obama has to decide between doing what is politically safe or what is right.

The idea of preventive indefinite preventive detention -- forever -- is morally repugnant and primarily a characteristic of totalitarian states. My preference would be for him to do what is right, even if that means risking defeat in the next election.

And your reference to "abstract human rights issues" is difficult for me to understand. What is abstract about locking people up forever for crimes that you suspect that they MIGHT commit in the future. Once we go down that road what chance do we have of preserving democracy?

Unless the Constitution is amended our government has three options; try the detainees by military tribunal, try them in a civil court, or release them.

you can't hold someone for what they might do someday.

Prolonged detention is a re-branding of the same old unconstitutional BS created by BushCo, any way you cut it.

and they have to legally remove people(read whiners) to protect the status quo. meet the new boss

had once practiced constitutional law, he has no excuse for this stuff. very sad.

.
.
.

:freak:

In any fair and honest legal process the accused has to be able to put up a defense in a fair and honest court of law.

...one or more people (or groups of people) who must at all costs remain innocent, the choices include Sauds, Emirates, Israelis, Corporates, or even foresworn US agents in numerous illegal acts of at least the past decade and probably for decades before.

Makes one wonder what some of those who died could have told us.


One of the reasons that these people have gotten away with the past several years is the size of the house of cards that comes down the moment any serious investigation takes place. And WHO would come down with that house of cards.


Obama, or even others in the past might have come in with all the best intentions, but soon discover the true scope of the morass they have inherited. And just what toes they would have to tread on to in order to even begin to prosecute those who so desperately deserve it and also what admissions would have to be made.

Welcome to DU.

I look forward to more of your contributions.

Our detainees are Muslims with no political clout -- in fact their political clout may be negative, since abusing them wins points among certain segments of our population.

Bush and Cheney, on the other hand, are Americans.

Politically, it's a no-brainer.

But morally, and for the good of our country, our leaders need to put aside politics and do what's right.

Thank you for a great explanation of this issue :thumbsup:

analysis. We cannot only be a nation of laws when it suits us. The torturers should be in prison and the tortured should go free if there is no evidence other than that obtained through illegal torture. Obviously Obama is worried about what these men may do under his watch; he must, however, stand tall for the Constitution. What he is directing is ruinous to the future of our country and our CONSTITUTION. WE CANNOT STAND BY OUR VALUES ONLY WHEN IT SUITS US1

The very title of Prolonged Detention is exactly what it is. If it were Orwellian it would be called something that would be the opposite of what it is....And as far as being arrested by the thought police, that has been used in all dictatorial regimes for centuries.

Songs like preemptive war or preventive crime.

Destine to fail and be abused. We might also just call it a Russian Gulag.

Ultimately we will either decide against the have-more's goal of having an Empire or we will be defeated around the world.

Too bad we can't just read history and learn from it.

At one time, we were rather critical of other governments who maintained them.

Now we have our own and are apparently determined to keep it.

Might as well take the Constitution out of the case and burn it. It doesn't mean a damn thing when we do this.

If you think someone has committed a crime, charge them, try them. If convicted, punish them. If not, free them. If you don't have anything to charge them with, send them home this afternoon.

Not at all complicated - been doing this now for a couple of centuries....