Patterico's Pontifications

5/21/2009

Hope & Change: Obama may go beyond Bush on detaining terror suspects

Filed under: General — Karl @ 8:42 am



[Posted by Karl]

The New York Times buries this eye-opener on Page A-18:

President Obama told human rights advocates at the White House on Wednesday that he was mulling the need for a “preventive detention” system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried, two participants in the private session said.

***

The two participants, outsiders who spoke on the condition of anonymity because the session was intended to be off the record, said they left the meeting dismayed.

***

“He was almost ruminating over the need for statutory change to the laws so that we can deal with individuals who we can’t charge and detain,” one participant said. “We’ve known this is on the horizon for many years, but we were able to hold it off with George Bush. The idea that we might find ourselves fighting with the Obama administration over these powers is really stunning.”

The other participant said Mr. Obama did not seem to be thinking about preventive detention for terrorism suspects now held at Guantánamo Bay, but rather for those captured in the future, in settings other than a legitimate battlefield like Afghanistan…

The Obama administration has been internally mulling this issue on the downlow for months. In February, Jane Mayer reported in the New Yorker on what this system might look like:

A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the President’s prerogative to lock “enemy combatants” up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a “national-security court,” which could order certain suspects to be held without a trial.

One proponent of this idea is Neal Katyal, whom Obama recently named to the powerful post of Principal Deputy Solicitor General, in the Justice Department… Given the sensitivity of this role, Katyal declined to comment for this story. But in October he posted an article on a Web site affiliated with Georgetown Law, in which he argued, “What is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.” This new system, he wrote, would give the government the “ability to temporarily detain a dangerous individual,” including in situations where “a criminal trial has failed.” There are hundreds of legal variations that could be considered, he said. In 2007, Katyal published a related essay, co-written with Jack L. Goldsmith, a conservative Harvard Law School professor who served as the head of the Office of Legal Counsel in the Bush Justice Department. The essay argued that preventive detention, overseen by a congressionally authorized national-security court, was necessary to insure the “sensible” treatment of classified evidence, and to protect secret “sources and methods” of gathering intelligence. In his Web post, Katyal wrote, “I support such a security court.”

Such schemes have already stirred considerable controversy elsewhere in the world, including in Great Britain, where since 2005 some three dozen terror suspects have been detained for a time under house-arrest-like conditions, in some cases being required to wear ankle monitors, obey curfews, and refrain from using phones or the Internet. In America, such a compromise is sure to alarm many human-rights advocates and civil libertarians, who regard indefinite detention as antithetical to the American legal system’s most basic tenets…

Later in the article, Mayer reported that White House counsel Greg Craig was looking at the whether the number of “hard cases” — suspects who may be difficult to convict under American legal standards of justice, but who may pose a palpable threat if released — might require preventive detention laws. While this thinking goes beyond the Guantanamo detainees, the difficulties Obama is having shutting down the facility — and perhaps his daily intelligence briefings — must be leaving him with more “hard cases” than he thought. Otherwise, he wouldn’t have floated this trial balloon with human rights groups, who were certain to receive it like the Hindenburg.

Cross-posted to HotAir, with an update from Allahpundit:

Update (AP): For extra nuance, read this Politico piece about The One’s speech this morning on torture. America “lost its way” under Bush, you see, by waterboarding the guy who planned 9/11. But now we’ve found our way back … with preventive detention.

–Karl

56 Responses to “Hope & Change: Obama may go beyond Bush on detaining terror suspects”

  1. Flip Flopper, Thy name is Obama? Whoda thunk it? :)

    GM Roper (85dcd7)

  2. We need a new nickname, as Flip Flopper does not even begin to describe the contortions Obama is going through.

    Not even close.

    This is absolutely hilarious.

    SPQR (72771e)

  3. Will Obama’s “ ‘preventive detention’ system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried,” be applied to ‘right wing extremists’ such as vets, bloggers, etc?

    davidt (0c740c)

  4. I’m wondering if the fact that previously released GITMO prisoners (under the Bush administration) were found to have later engaged in terrorist activities against the US played a prominent role in this policy reversal.

    Dmac (1ddf7e)

  5. Eagerly awaiting the spin from the trolls. It should be classic.

    Techie (9fd7a0)

  6. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a “national-security court,” which could order certain suspects to be held without a trial.

    Great. It’s not much of a stretch to picture said national-security “court” (comprised under Obama of earnest community activists from ACORN and MoveOn) rounding up ‘certain suspects’ who fail to follow his party line – and holding them indefinitely without trial.

    That will be used as a final solution to choke off all public expressions of ‘hate’ against the Obama admin. The first two logical candidates are Dick Cheney and Rush Limbaugh, but I’m sure that others can suggest further suspects.

    Insufficiently Sensitive (a939d1)

  7. But now teh One said this morning that he absolutely, postively, nay, concretely will close GITMO come hell or high water. What?

    Dmac (1ddf7e)

  8. The mendoucheousness of these people should be breath-taking.

    JD (8e9826)

  9. “We need a new nickname”

    Comment by SPQR — 5/21/2009 @ 8:52 am

    How about “der Wechsler” (the changer)?

    GM Roper (85dcd7)

  10. Ah, yes – preventive detention! But for whom? Depends on who will be classified a “terrorist” under the new Law. Remember the “Alien and Sedition Acts” and President Wilson’s ctivities during World War I.

    Longwalker (4e0dda)

  11. Ah, yes – preventive detention!

    Obama should model himself and call it “internment”. Maybe one of his stimulus bill’s items could be refurbishing the Manzanar center.

    Steverino (69d941)

  12. Oops…meant “model himself after FDR”

    Steverino (69d941)

  13. Cheney’s speech ought to make Olbergasm’s head assplode tonite.

    JD (8e9826)

  14. For guidance, all they have to do is to look to their old puppet-masters in Moscow and how people are incarcerated for “psychological evaluation” when they demonstrate attitudes and actions incompatible to civil order and state security – in other words: Counter-Revolutionary Actions.

    AD - RtR/OS! (00ce61)

  15. BTW, I have changed my evaluation of Duh-1 as the second-coming of Jimmah, or a pale (sic) imitation of FDR.
    I think he actually is channelling EVITA!

    AD - RtR/OS! (00ce61)

  16. The contrast between Cheney’s speech and Obama’s speech is quite stark. And illustrates that Cheney is the serious adult and Obama is not.

    SPQR (72771e)

  17. Foreigners captured in combat are not entitled to U.S. constitutional protections.

    Michael Ejercito (7c44bf)

  18. We lost our way, people. Barcky told us so. It must be true. Now, I am not sure how this squares with him maintaining, continuing, and in some cases expanding the policies of President Bush. As Karl pointed out in a prior post, yet another example of the Obama 3-step.

    JD (8e9826)

  19. Comment by Michael Ejercito — 5/21/2009 @ 10:45 am

    But they’re gonna get it anyway.

    Soronel Haetir (a3f11b)

  20. We lost out way under Bush… We shall re-find out way by doing exactly what Bush did, plus even more questionable stuff.

    Scott Jacobs (90ff96)

  21. But we will not waterboard, Scott. We will not waterboard. Teh one has told us that the evil torture has ruined us in the eyes of the world, and he, and only he, is able to bring us back into the world’s good graces. That is why NorKo and Iran are flipping him the bird, and all of his apologizing has got us exactly diddly-squat to show for it.

    JD (741860)

  22. When will this man grow up and accept the fact that he now has the job he asked for. Whimpering that the Bush administration and Guantanamo left a “legal mess” that officials in his Administration now have to deal with instead of doing “vital work of vast importance to the country in implementing my next hare brained scheme” does not become the man. The “legal mess” comes from the activities of his good buddies in the ACLU and at white shoe law firms.

    If these law suits are a “distraction”–why not call the distractors and tell them to STFU. After all, Obama isn’t much for the “rule of law” when it comes to secured creditors for the car companies, so why is he worried about the rule of law for folks represented by the ACLU?

    Mike Myers (674050)

  23. What struck me the most about Teh One’s prebuttal, outside of the breath-taking mendacity, was how many times TOTUS says “I” in his speeches.

    JD (741860)

  24. When will this man grow up and accept the fact that he now has the job he asked for.

    Again and again I wonder when the left will stop using the legacy of Bush’s mess as an excuse. The left has breathlessly cataloged all the Bush evil for the past 8 years. It isn’t as if they didn’t know (at least in general terms) what they were getting themselves into.

    They wanted it. They fought for it. They insisted they could fix it. So shut up and fix it already. I’m waiting.

    I’m a reasonable man. I don’t expect get-fixed-quick schemes to work overnight. But for God’s sake I wish they would quit acting like all this was thrust upon them, unknown, on Jan 20th. I mean, hell, Obama himself may be a neophyte…but he’s surrounded with political allies (well, Democrats, anyway) who had a large part in enabeling Bush to be as bad as they insist he was.

    It’s not as if some unknown relative died and bequeathed to them a pile of previously unknown problems.

    Children. The lot of ’em.

    KB (5a6552)

  25. Amen, KB.

    Compound what you just said with the numerous, more common than not, instances where Teh One has not at all changed from the Bush position, and in some cases, like as referenced in this post, will actually go well beyond the Bush positions (which were evil and illegal when Bush did it, BTW).

    JD (741860)

  26. I think the major issue here is that Obama is just a plain old fashioned pussy, to put it bluntly.

    Knuckles (9716a0)

  27. I loved that Cheney reminded folks that Obama has reserved the right to secretly implement enhanced interrogation techniques at his discretion at any time. I saw one item on line about that in January when he was sanctimoniously signing his executive order banning torture – but nothing in the MSM. Glad that Cheney pointed that out as another example of The One’s duplicity.

    in_awe (bc82df)

  28. It is depressing to see that Obama is an even worse phony than Kerry, if that is even possible. The man is president ! Why the campaign mode rhetoric ! Someday, he will be judged by history. Is this the way he wants that done ? I don’t think he actually believes that he is president and the buck really stops there.

    Mike K (8df289)

  29. Качество друзей тоже надо учитывать. Дональд Трамп, например, на двадцатку потянет.

    Marinkina (73f33b)

  30. The Marines solved this problem in Iraq quite nicely by changing their shooting policy from targeting the torso to two in the head. Works every time.

    glenn (2d382b)

  31. Update (AP): For extra nuance, read this Politico piece about The One’s speech this morning on torture. America “lost its way” under Bush, you see, by waterboarding the guy who planned 9/11. But now we’ve found our way back … with preventive detention.

    Sure, ignore the fact that when Obama detains someone he does it reluctantly and in order to protect the country but when Bush does it, it’s because he’s McChimpbushhitler.

    Terry Gain (4f27d2)

  32. It’s all in the good intentions, purity of heart, and of course, bunnies and unicorns.
    We are screwed.
    Of course his new PD policy dove-tails nicely with DHS’ Terrorist Alert to local PD’s:
    Detain anyone without an O sticker on a Prius!

    AD - RtR/OS! (00ce61)

  33. Someday, he will be judged by history. Is this the way he wants that done ? I don’t think he actually believes that he is president and the buck really stops there.

    Obama believes the media is in his pocket and the people who will write history believe in him.

    He’s right.

    Terry Gain (4f27d2)

  34. He’s right as long as he doesn’t create a version of Pol Pot.
    To paraphrase Dick the Butcher:
    First thing we do is kill all the journos.

    AD - RtR/OS! (00ce61)

  35. Yes. But who will the Obamites lock up “Veterans, pro-life groups, federalists and supporters of gun rights.”

    davod (bce08f)

  36. Obama believes the media is in his pocket and the people who will write history believe in him.

    He’s right

    Perhaps, but Carter thought the exact same thing, and he was right – until he was proven horribly, horribly wrong, on just about everything. The MSM can only whitewash so much BS until the vast majority of the populace starts screaming about what went wrong.

    Dmac (1ddf7e)

  37. There’s actually a very simple way to do exactly what needs to be done, something that President Bush should have done: simply declare that the prisoners captured fighting against the United States are going to be classified as prisoners of war under the Geneva Conventions.

    This would mean that they could be held until the end of the war against Islamic fascism, and that could be a very long time. It would mean that we couldn’t try them with military tribunals, of course, unless they were top leaders being charged with war crimes, but that really doesn’t matter: we weren’t going to execute them, and holding them in captivity as POWs is little different from holding them in prison as convicted criminals.

    It would also mean that they couldn’t be interrogated, but only a few of the higher-level captives ever had much useful information, and that all becomes stale very quickly.

    Finally, it would address the concerns here concerning domestic dissidents.

    The biggest problem with my approach is one of perception: it would require the President to move away from the law enforcement mentality of the Democrats to realizing what President Bush knew instinctively: that this is a war, not a law enforcement problem.

    Given that the head of al Qaeda declared war on the United States, in two fatwas issued in 1996 and 1998, we even have that “problem” covered.

    The Dana with useful suggestions (474dfc)

  38. Aaaaand the winner is………….?

    The Emperor (09c9e3)

  39. I do not understand how GITMO is a “mess” if the correct path from the start was civilian trials in Art III courts for these “criminals.”

    If that is the solution, then put them all on one Air Marshall transport flight to Wash DC, and have them appear in the District Court on Monday. Charge them with crimes under Title 18 and start the process of providing them with discovery.

    If that was the proper approach in 2002, then it can be done tomorrow, and what happened in the interim is not an impediment in any way.

    Shipwreckedcrew (e73ed2)

  40. “…start the process of providing them with discovery…”

    And that is the sticking point: Opening up the files of the CIA, NSA, and the SpecOps Groups to discovery by the Defense Bar, which will just be a conduit for that information back to A-Q and its’ coat-holders.

    Better that they should have never existed.

    AD - RtR/OS! (00ce61)

  41. Why not just return them to Afghanistan?

    I doubt legal niceties there apply to them.

    Michael Ejercito (7c44bf)

  42. “Charge them with crimes under Title 18 and start the process of providing them with discovery.”

    Lynne Stewart would be smacking her chops over that one.

    daleyrocks (5d22c0)

  43. For aiding and abetting, she should have been shot too.

    AD - RtR/OS! (00ce61)

  44. He’s going to put his terrorists in Florence, Colorado.

    That will be great news for Michael Bennett, the guy appointed with no electoral experience, to Salazar’s Senate seat. That one will go GOP in 2010 …

    SPQR (26be8b)

  45. Why does Obama hate the detainees? Guantanamo has already been proven to be the safest and least abusive of any U.S. detention or prison facility in multiple investigations. Why does he insist on moving them to less desirable conditions elsewhere? The entire Guantanamo torture and abuse palace myth has just been a masterful piece of propaganda on the part of the left with no truth backing it up.

    daleyrocks (5d22c0)

  46. Meanwhile, the dearth of reporters has death penalty opponents mourning.

    Death Row Foes See Newsroom Cuts as Blow
    By TIM ARANGO
    Opponents of the death penalty looking to exonerate wrongly accused prisoners say their efforts have been hobbled by the dwindling size of America’s newsrooms, and particularly the disappearance of investigative reporting at many regional papers. . .

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  47. Apropos of nothing. Just a comment from a former Beatle:

    Yes, I told you that the light goes up and down.
    Don’t you notice how the wheel goes ’round?
    And you better pick yourself up from the ground
    Before they bring the curtain down,
    Yes, before they bring the curtain down.

    Ag80 (c86726)

  48. Comment by Brother Bradley J. Fikes, C.O.R. — 5/21/2009 @ 9:22 pm

    Lawyers bitching because they won’t be able to get others to do their legwork for free;
    Yah gotta love’em!

    AD - RtR/OS! (00ce61)

  49. Bradley – They ought to tell the death row inmates to write more childrens books. Didn’t Tookie write a few best sellers? That should pay for some investigative work.

    daleyrocks (5d22c0)

  50. It would be easy to close Gitmo after all the terrorists have been shot, which is better than they deserve anyway.

    Ropelight (e36d4f)

  51. Will Obama’s “ ‘preventive detention’ system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried,” be applied to ‘right wing extremists’ such as vets, bloggers, etc?

    Yes, yes, and yes. This guy is NOT socialism lite-he’s the real deal. The longer he’s in office, the more totalitarian he will become.

    trentk269 (086ecc)

  52. Comment by Ropelight — 5/22/2009 @ 6:29 am

    New Fitness Program for GITMO Detainees:

    Long Distance Swimming.

    Take them a couple miles off-shore, and let them swim back to camp.

    AD - RtR/OS! (6a6a3b)

  53. Why am I not surprised considering Obama considers veterans, gun owners, abortion protesters, and defenders of the Constitution to be “terrorists.”

    THOMAS JACKSON (8ffd46)

  54. […] todavía. El mismo 21 de mayo (gracias a Karl en Patterico’s Pontifications) el New York Times incluía esta noticia: El Presidente Obama dijo en la Casa Blanca el miércoles […]

    Transición de Obama: seguridad nacional (II). Obama reivindica a Bush, o Guantánamo 2.0. « Sarah Palin en Español (4e2eee)

  55. […] problems Obama faces here are the flip side of his decisions to embrace — and possibly extend — the Bush administration’s war policies. These are decisions made because reality ultimately […]

    Patterico’s Pontifications » Pres. Obama and the Reality Bomb (e4ab32)


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