"Preemptive Detention"

After President Obama's speech on national security and closing GITMO yesterday I expected most of the right wing, fear baiting push back. However I was at least somewhat surprised by an issue in President Obama's speech that seemed to rile up some on my side of the ideological bent. The discontent was in response to these words.

As I said, 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. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in 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. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. 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.

This has led several voices on the left to characterize what President Obama is planning to do as "Preemptive Detention". It also led to this segment on The Rachel Maddow Show last night.

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Now I might take some heat for this but I disagree with this whole notion that what President Obama is proposing is "worse than Bush". For one while I would label myself a progressive I would also consider myself a realist first. President Obama made clear in his speech, in fact in the very words that some on my side object to, that he doesn't intend on instituting a system of prolonged detention all on his own. In his words he plans on working both with Congress and the Judiciary to construct a legal framework for this program. The operative word being "legal". The biggest problem (aside from the torture of course)that George W. Bush created in his so called "War on Terror" is that at almost every level his detention and prosecution policies were illegal. Don't take my word for it, just ask the Supreme Court.

Bush said GITMO was outside the reach of the law because it was on foreign sand, the Supreme Court disagreed. Bush said GITMO detainees should not be afforded the protections of the Geneva Conventions, the Supreme Court disagreed. Bush said GITMO detainees do not have habeus corpus rights, the Supreme Court disagreed. Bush said the Military Commissions pre 2006 were sufficient to try GITMO detainees, the Supreme Court disagreed. This has led, as President Obama mentioned yesterday, to us only prosecuting 3 detainees in the 8 years following 9-11 and that to me is an EPIC FAIL. And as President Obama pointed out it was obviously unsustainable.

To me what President Obama is putting forth now is an entirely different animal. What he wants to do is create a situation where everything he is doing with respect to the detention policy of terrorists are legally sound and imminently defensible. Now I realize that many people have a problem with the concept of detaining people indefinitely without charges or prosecutions but I think much of that unease has to do with the fact that under the Bush Administration so many so called "enemy combatants" were held for years and years and in the end it turns out that they were truly innocent. I can't imagine what those detainees who happened to be innocent went through, being held in a foreign land without being told what they were accused of. However those are not the kinds of detainees we are talking about here. What President Obama was talking about were detainees who really ARE guilty but because the Bush Administration was so fond of torture any evidence about their guilt has probably been tainted. Or perhaps these men are guilty however the evidence of their guilt is not strong enough to stand up in a court of law. Now I know our judicial system is built on the premise that its better to have 100 guilty men go free than have 1 innocent man go to jail however I do not believe that this is the same kind of situation.

Right now there is another Pentagon report with inflated numbers about GITMO detainees who have been released who have either become terrorists or who have become terrorists or who have "returned to the fight". Now the inflated numbers have been debunked several times by a professor at Harvard, however one of the uncomfortable truths for people on my side is that while the numbers are in fact inflated, there still are some actual documented cases of at least a few of these men becoming terrorists or returning to terrorism. Now the reason why its uncomfortable of course is because its proof that it can and has happened so you can't just dismiss the notion outright. So the question is what happens if President Obama allows some of these detainees that he feels can't be tried successfully in court to go on trial and they are found not guilty? What happens if after being found not guilty they are deported to a foreign land and either continue or start a career in terrorism. What if their efforts are felt eventually back here at home? I can tell you what will happen, President Sarah Palin that's what. And this is not just a political argument. How would any of us feel if in fact people died in this country because we let a terrorist out of GITMO because evidence was tainted or simply not strong enough to support a conviction? I know I would feel like we failed our citizens.

For people who believe that if these people are really terrorists then there should be no problem convicting them I would remind you of our country's history of finding people most of us find guilty, innocent. From O.J. Simpson to various Mafia figures, there is ample evidence that our courts don't always get it right. For that reason its not a given that the guilty will get punished and the innocent will go free. I happened to see a post on the Huffington Post from Cenk Uygur, whom I am a fan of, and he was arguing the case for bringing detainees to supermax prisons here in the United States, something which I wholeheartedly agree with him on. But included in his post was this nugget.

So, the final concern is if they're found not guilty and have to be released. Has no one considered that at that point we would know that they are not guilty? Is that not a relevant consideration to anyone?

Now for me that doesn't resonate because as I said before, just because someone is found not guilty does not necessarily mean they aren't guilty. Now to be fair to Cenk he goes on to allow for the fact that some who are found not guilty might actually be guilty but we just didn't have enough evidence however his answer to that to me doesn't add up. He says that in those cases as well as in the case of of those who really ARE innocent we can just use diplomacy to ship them to foreign countries willing to take them for a pay off of some kind. Now in the case of the truly innocent ones like the Uigyurs I would agree that it would be an option. But if we know the guilty ones are really guilty then I am pretty sure that we aren't the only country that realizes that. And that being the case I don't think ANY country would take the problems off of our hands no matter what the pay off. Remember this was a problem of our own making anyway so what motivation would a country have for taking a true blue terrorist off of our hands just because we couldn't convict them? I can answer that question for you, none. So what happens if we try people we know are guilty of terrorism and they are found not guilty and no other country will take them? When you come up with an answer for that that is viable let me know.

Dibgy had this to say yesterday:

There is no such thing as a terrorist suspect who is too dangerous to be set free.

But is there a such thing as a terrorist suspect who is too dangerous to be set free in America? I would say the answer to that is absolutely yes. And whether we like ir or not the truth is if any terrorist suspect that we set free kills innocent people on American soil what Cheney did to order torture in our name will pale in comparison to what happens next

Which brings me back to what President Obama is proposing and what I feel is a mischaracterization of what he said. This notion that he is advocating imprisoning people for crimes they may commit in the future misses a fundamental point. Most of these people are imprisoned for stuff they have ALREADY done. The problem isn't whether they participated in terrorist activities, the problem is whether it can be proven in a court. So while this is admittedly a new proposition of keeping people in custody without charges, this isn't some real life version of "Minority Report" as Rachel Maddow alleged last night. And again I will point out that President Obama is saying he will do this all in the light of day with the help of Congress and the Judicial branch of government to make sure its actually legal.

Now I respect those on my side who are die hard civil libertarians. I think they have probably a healthier respect for the Constitution than anybody else in this country. However I just believe that sometimes in their push for fairness for all they may miss the point of the consequences involved when it comes to dealing with actual died in the wool terrorists. Now am I totally sold on what President Obama proposed yesterday? Of course not, how could I be. Right now we don't have an actual program to examine and dissect. However I personally am heartened by the fact that whatever he attempts will be out in the open for all to see. If he ends up trying to implement something that is illegal and some how some way he gets both Congress and the Judiciary to go along with it then I will voice my opposition. But until that time I am personally not moved by the arguments against what he is trying to accomplish. I just believe that there really are times where you deal with people differently if they are committed to doing harm to your country. And if anyone believes I am wrong or misguided I am willing to take the heat for that. What I am not willing to do is join in on criticizing President Obama for trying to clean up an untenable mess that he inherited from the previous administration.