Preventative Detention, Revisited

Crossposted at Attackerman

Yesterday I put a post up about why I didn't believe that President Obama's speech actually constituted a call for "preventative detention". I also made a comment at Greg Sargent's ThePlumLine blog about the same thing. The major point I was trying to make was that, at least in his speech, President Obama was referring to detainees who had in fact committed crimes in the past but we just couldn't prove it in court for one reason or another. I recognize the slippery slope this might invite but I also am not freaking out because he, at least says, he plans to do this all in the light of day, starting from scratch and bringing in Congress and the Judiciary to help him form a system that actually conforms to our rule of law. I know I know easier said than done. And no I am not just an Obamatard. I just believe in at least giving the man a chance to prove he is going to be true to his word....or that he isn't.

However, the other day while on the Attackerman blog I made a comment that I THOUGHT would just be an exercise in provoking thought about this issue. I said:

I should add that the notion of holding someone indefinitely without charges is not cool in my opinion but I just think that is the difference in the two positions.

However can’t we lock people up in this country against their will for psychological reasons if they are going to be a danger to themselves or others? Not saying its the same thing but just throwing it out there for conversation.

Well maybe I wasn't that far off after all. Cue Democratic Senator Sheldon Whitehouse:

To argue by analogy, one can go to court and to a civil standard of proof show that someone is a danger to themselves or others, and obtain a civil commitment restricting their freedom. If we can do this with Americans, it seems logical that we could also do it with foreign terrorists. The question is, what checks and balances should surround the initial determination of danger, and what safeguards should stay with the person through the period of confinement? I look forward to hearing more from the Obama Administration about what schedule of rule of law safeguards they intend to apply, but I think that the example of civil commitment shows that it is not categorically forbidden to restrict someone’s freedom based on a finding of danger.

Digby's thoughts on what Senator Whitehouse had to say:

I think that may be even scarier than Gitmo. It implies use of psychiatric hospitals for political prisoners, a la the Soviet Union. It's a terrible analogy.

Whitehouse is a good guy and I don't mean to pick on him, but this just won't do, even to make a point. Involuntary committment cannot be used for criminals, who everyone knows may very well re-offend when they are released, so it certainly cannot be used for terrorist suspects who are accused of being at war with America. (Unless, of course, you think it is insane to be at war with America.) The history of involuntary commitment is hideous throughout world history and it remains controversial to this day, even when it is used for people who are truly mentally ill. To even think of it as a way to argue that such policies are analogous to the indefinite detention of terrorist suspects is really dangerous.

Now as I said yesterday, I have a ton of respect for civil libertarians, especially those in the blogosphere*. I think that it is precisely because they keep pushing the Overton window that we are going to end up having much more Constitutional and humane ways of dealing with our enemies in this war against religious extremists around the globe. And I will once again give my caveat that I don't believe that what President Obama proposed thursday is the same as "preventative detention" or the same for that matter as "Baker Acting" someone, as we call it down here in Florida, because many times when you commit a person under those laws its before they have actually hurt themselves or others. BUT, if we are to assume that President Obama DOES want to use preventative detention in the ways that many civil libertarians and Rachel Maddow have put forth, wouldn't something like the laws for civil committments apply in terms of the rule of law? What I am saying is don't those existing laws pretty much rebut the claim that we don't have anything comparable on the books that has been deemed Constitutional? In truth I think when you sit back and think about it basing the committment on psychological problems may actually be more useful than any other proposal for preventative detention.

What I mean is when you have someone committed against their will in this country, they never stay there indefinitely. They have to go through constant evaluation until a team of psychiatrists are reasonably assured that they are no longer homicidal or suicidal or both. I believe the same pretty much goes for persons who are committed to psychiatric institutions by judges as punishment for their actions in lieu of jail time. I wouldn't say that wanting to kill civilians, American or otherwise, is necessarily a mental condition, however I am sure there are those who might say it is. Especially if the belief in jihad has been brainwashed into a detainee for years and years.

Now before we go any further let me make something clear I AM NOT ADVOCATING USING THE RULES OF CIVIL COMMTTMENT TO GO OUT AND ROUND UP "SUSPECTED" TERRORISTS THAT WE CAN HOLD INDEFINITELY. This is more of a thought experiment to get regular readers' and commenters' points of view on this issue. I know how hard it is sometimes to leave a comment on a blog when it seems like your view is the one swimming upstream in terms of public opinion, especially on issues related to GITMO detainees and or torture. But I want to welcome both sides of the argument to weigh in. Are there people out there reading this blog who agree with indefinite detention of GITMO detainees and if so what is your rationale? Now my only request is that you be able to defend your position with out denigrating someone else. If you really believe either way then you should be confident enough in your position that you can back it up with both thoughts and perhaps links to credible information that informs your own thinking on the issue.

This issue will not be going away any time soon. There ARE going to be GITMO detanees who simply can not be tried because they have been tortured or the evidence is weak or a trial would reveal some kind of national security secret. So if we are all for closing down GITMO, then something is going to have to give with those prisoners. As President Obama said Thursday "this is a mess" but we knew that already, so now is the time to ask what do we do? If we don't have "prolonged detention" or "preventative detention" or some other form of "indefinite detention" then what is the answer? What do YOU think?


* I DO have a quibble with Digby's and other's around the blogosphere who are now dubbing prospective detainees as "political prisoners". Even in the extreme, if we were going to preventatively or preemptively pick up suspected terrorists, I simply do not believe they would fit into the definition of a "political prisoner". Classifying them as such degrades the people who really ARE political prisoners IMHO.