Thursday, May 28, 2009

‘Prolonged’ Detention Lesser Evil, Still, Evil

President Obama’s proposed preventative, or to use the President’s word ‘prolonged’, detention program that was outlined in his national security speech last week has rightly generated a lot of controversy. It is controversial. Unfortunately, much of the criticism so far is misplaced. The pronouncement of the program was largely met with speculation of doomful hypothetical situations – anything from the totalitarian detention of thought criminals to the end of the justice system as we know it. What is more, this speculation has come from all sides of the political spectrum – liberals who are afraid to confront reality and conservatives who are not even capable of that confrontation. The reality is that a ‘prolonged’ detention program may be the only moral choice left to rectify a long series of immoral policies.

Let us start with the fact that we only know a couple of things about the proposed ‘prolonged’ detention program, which are these: Obama only referred to ‘prolonged’ detention in regards to current Guantanamo detainees that are determined a threat and are unable to be tried (for reasons we will get to later); and that it will be a system that will include periodic review and the involvement of all three branches of government. If these are the sole parameters of a ‘prolonged’ detention program then such a program should be welcomed across ideological lines. This scenario seems to be the most likely outcome of a ‘prolonged’ detention program if only because it is what the President indicated, “I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred.” Obama is a gifted lawyer and as such very thoughtful in his choice of words. If he goes against them and expands the scope of any ‘prolonged’ detention program beyond “remaining Guantanamo detainees that cannot be transferred”, then cries of abusive expansion of authority will be justified. Until then it is imperative to take account of the situation that is and not cloud our judgments with situations we fear.

As much as it pains one to advocate the seeming abrogation of our Constitution and indeed the fundamental human rights of potentially dozens of people, our commitment to the protection of innocent lives must outweigh our commitment to absolutist legal principles, because even human rights can be conflicting. I have advocated against the detention of prisoners at, and indeed the existence of, the detention facility at Guantanamo Bay, and the use of torture, since these violations of U.S. and international law were first committed. That doesn’t change the fact that they have happened. It also does not change the fact that over seventy Guantanamo detainees released so far have gone on to fight against American troops or commit acts of terror. No doubt some, if not the majority, of these former detainees were completely innocent at the time of their capture or rendition, just as there is no doubt that many more innocent people were tortured and remain captive at Guantanamo Bay today.

Let us be clear, ‘prolonged’ detention in whatever form it takes would only be applicable to people who are innocent of any crimes, because anyone with a shred of evidence against them would at least be given a military tribunal. But over the course of seven years of torture and the close comradeship of very guilty Al Qaeda members it is likely that some, not necessarily all, of these innocent people now have the singular intention of committing terrorist acts upon release. I don’t want the government imprisoning people by way of determining who ‘is likely’ to commit terrorist acts, especially people that have not even committed a crime. But clearly the situation at Guantanamo Bay is exceptional. Anti-torture advocates, I among them, argue that torture creates terrorists, and in that argument we are generally only referring to people recruited to Al Qaeda by the mere thought of it. Actual victims of torture are understandably even more likely to engage in terrorism toward the society that allowed them to be tortured if only for retribution.

Despite being routinely misled about security threats for the past eight years, we still have the rational capacity to determine if our government is misleading us. We also still have professionals that are fully capable of competently assessing a security threat. If it is judged by a competent authority that some of these innocent (or not so innocent) victims pose a grave danger to the safety of other innocent people then that judgment has to be sufficiently damning. Arguments that favor upholding a legal principle in the face of any mitigating circumstances don’t account for reality.

The fact is that we do preventively detain people who have been determined a threat – people with mental illness. Mentally ill people who show signs of violence or violent ideation are detained indeterminately all the time with no serious objection. This is done because it is necessary to keep people safe and there is no viable alternative. It is unwelcomed and it is miserable, but it is reality nonetheless.

If, in the very peculiar and sad circumstances of Guantanamo Bay, intelligence experts and psychologists determine some of the innocent detainees are indeed threats to the lives of themselves or others, then it is the duty of the American government to keep them in detention for as long as they are deemed dangerous. This does not mean that they need to be imprisoned forever - indeed after more humane treatment and rehabilitation it would be likely that many could be released in the future. It also does not mean that it is preferable, if there is not a grave threat then innocent detainees should be released, as they have been. But in cases where a grave threat is posed by a detainee then there is no moral argument to release them, only to do harm to themselves or others. This should not be an easy determination. It should be done through the most rigorous procedures available. This should not even be simply deliberative. This should be painful as hell and we should all be very ashamed that it has come to this. But this should demonstrate all the more the necessity of bringing the perpetrators of the crimes that have led us here to justice.


  1. I am shocked to read both your conclusion and the evidence used to arrive there. Clearly many of my most poignant Glenn Greenwald Facebook links have gone for naught into the online abyss.

    There are many levels to this discussion, but I'll keep my first points as brief as possible.

    The liberal straw man argument. I admit that during the civil liberties debates of the past few years I sometimes wonder to myself if we aren't pushing too hard or there isn't something to the "national security" measures taken. The doubt is probably healthy, and mostly mollified each time Dick Cheney speaks or the Supreme Court has to rule on whether or not the President can take American citizens, lock them in a cage forever with no legitimate chance of habeas corpus. I don't think we're afraid to confront reality at all, but rather are using the lessons of history (Alien and Sedition acts, internment of Japanese Americans, Hoover era FBI abuses, the crimes of Richard Nixon, et cetera). That's a bold claim to make without evidence to back it up - such as what we see every day of the GOP/right wing's authoritarian mindset.

    Barack Obama is, unlike his predecessor, not an ignorant zealot lacking the ability to empathize with an innocent Muslim prisoner stranded in Guantanamo Bay. That doesn't mean that misguided policies can't, in practice, replicate the behaviors of George Bush. If the framework for "prolonged/preventative detention" is exactly, to the letter, as he states it will certainly be an improvement over the past. But the fundamental questions still remain and to my knowledge have never been answered sufficiently:
    1 Who are these people?
    2 Why can't they be tried in a civilian court (specifically)?
    3 How are the people currently imprisoned right now different than the people who have been released? If this is only based on nationality, as Seton Hall law professor Mark Denbeaux says, let it be known.

    Speaking of Mark Denbaux, I will link two references to him below. Both are illuminating and lie waste to, or at least fatally wound, what I think are the main premises behind your argument. This is especially true for the miserable lie about 1 in 7 detainees "returning to the battlefield" - an article so askew the Times added a rare three paragraph correction. Sadly, the correction did not mention that the entire premise of "joining jihad" to be misleading, as laid out in my links above. I grant the dishonesty of this argument was a product of the Bush/Cheney administration and have not heard Obama telling this lie since becoming President. Yet clearly it still works its way around our political dialog in order to bolster his proposal.

    I think I understand your major concern, though correct me if I'm wrong:

    "How can we release people who through our own actions have likely made them a threat - a threat that could be realized if they were free to pursue this agenda?"

    Unlike your compatriots on the right, you do not ignore the moral calamity befallen us in this creation of new threats from those previously hostile or benign. I would no more want to see someone intent on committing a terrorist attack on the United States freed because they were "unprosecutable" than I would a convicted murderer released because of prosecutorial conduct. But just because something causes internal revolt or possible - and I stress, possible - danger, does not mean that we can find new ways to continue down the path of Guantanamo 01-09 with a new, young African American face.

    The real difficulty here is determining who is a "threat." I don't want to micromanage the internal decisions of CIA, FBI, DOD and others, yet at the same time do not trust them to do the right thing. In this case, the right thing is releasing people who have not committed a crime and trying those who have. That's a bold statement to make and I know you'll have much to contest - here and earlier in my response. I look forward to reading it.

  2. This is his report on the true facts regarding Guantanamo prisoners.

    This is a article featuring a transcript of his appearance on Rachel Maddow.

  3. First, thank you for your thoughtful response. You have distilled the essence of the entire essay:

    "How can we release people who through our own actions have likely made them a threat - a threat that could be realized if they were free to pursue this agenda?"

    But unfortunately you do not seemed effected by it.

    All the other stuff about Obama being like Bush, and Japanese internment aren't things I even disagree with, it is just that they aren't relevant. Which is exactly the liberal straw man that I was invoking. The Glenn Greenwald posts that you put were actually the impetus of this post because, while I like GG a lot, I just started feeling like he was becoming like a conservative blowhard in that he was ideologically coming up with a conclusion and then trying to make up arguments, most of them straw men, none of them taking seriously into account the many troubling and specific issues of the case, in support of it. It makes me sad to see liberals simply equate something that Obama does with Bush and ipso facto it is bad without looking further to see if it really IS like Bush, and that is not even to say everything Bush did was bad!! (But that is a different discussion). That is what Conservatives do ('This is Socialism'). And it discourages dialogue. I'm not saying that is what YOU're doing I am saying GG has done it many times recently. I also think it is important not to singularly focus on lessons from history when they cannot be completely analogous to the present. They may be helpful informing an opinion on the matter, but they cannot be used as an ideological shield to dismiss the nuances of the issue at hand.

    "In this case, the right thing is releasing people who have not committed a crime and trying those who have."

    "I would no more want to see someone intent on committing a terrorist attack on the United States freed because they were "unprosecutable" than I would a convicted murderer released because of prosecutorial conduct."

    These two positions aren't reconcilable under the scenario I was discussing. Because the people I was talking about have NOT committed a crime, AND are a real threat to innocent lives. That is the harsh reality of the situation, and is also the point that the discussion of the situation in media fails to address. Which is why I think you mostly engaged arguments on peripheral issues that are popularly debated verses the issue you correctly identified as my central thesis. I would like to see those detainees released. I just can't think of a way to be able to do it. Obama's program seems like a very reasonable approach (while not the only reasonable approach), and I wanted to take an honest look at what he is probably saying and not projecting Bush-fear or my old friend unwarranted liberal indignation onto the current proposal. That doesn't mean it wont turn out horrible, but I don't think it is reasonable to draw that conclusion - yet.

  4. Good morning America. I wanted to further comment on a couple things that aren't substantively important to the arguments in the essay or responses. First, Glenn is very right about the falsity of the one in seven or over seventy Guantanamo detainees returning to the battlefield retraction. I was not aware of the retraction and it happened after I read the story. I had a dream two nights ago that people were making fun of me for asserting somehting as true that I read in the New York Times, which seemed odd being that that plagerized story by Jason whatshisname was so long ago, only to be humiliated the next day!

    But it is still reasonable to expect that SOME percentage of released detainees went on to fight America, I mean, I probably would after having been tortured and sent back to a region where the U.S. was continuing its practice with impunity. And the hypothetical in this case is sufficient to at least demonstrate how someone could be held at Guantanamo, be innocent, AND be a security threat. It doesn't mean all torture victims are security threats. But at some point we DO have to trust somebody to evaluate that. I am not suggesting that Obama will certainly appoint the appropriate people to do so, I can only hope.

    Second, I thought I should clear up for readers that aren't Glenn or myself; I AM extremely liberal, and I don't think that just because I question GG my bona fides should be suspect. I am approaching this issue as I view any good liberal should - through reason, and I came to the conclusion that many liberals are 'heeding the dog whistles' and not taking into account the situation as it is. That is not to say my best friend Glenn is doing this or is being unreasonable. My critique was more general but certainly with Glenn Greenwald in mind.