Reviewing Detentions

Back when there was all that controversy about flushing Korans at Gitmo, my general reaction was that the charges of outright torture were overblown.  In fact, today I think all this focus on torture-lite was counter-productive, diverting attention from the core question of "no matter how well they are treated, do we have a right to indefinitely detain them at all?" 

The main theme in my posts both on detentions as well as NSA wiretaps has been that our current problems with terrorism do not justify the relaxation or overriding of our core principles of separation of powers.   If we are are going to detain people, it should be following rules laid out by Congress and with clear points of review or appeal to the judiciary.  The exact rules for Habeas Corpus may be different for people captured in Afghanistan than in Omaha, but they can't be thrown out all-together by administration fiatThe rights protected by our Constitution and its amendments are our rights as humans, not just as Americans.  Our rights not to be locked up indefinitely or not to be subject to invasive searches without a warrant predate government - they are protected by the government, not provided by the government.  As such, even foreigners, who presumably are human, possess these rights too.

It turns out that the Gitmo detentions, years after they began, are starting to get the third party scrutiny that you and I expect to get after 48 hours of detention.

If accurate, this National Journal cover story is scandalous.  Stuart Taylor's Journal column sums up the major points:

  • A high percentage, perhaps the majority, of
    the 500-odd men now held at Guantanamo were not captured on any
    battlefield, let alone on "the battlefield in Afghanistan" (as Bush asserted) while "trying to kill American forces" (as [press secretary Scott] McClellan claimed).

  • Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.
  • Many scores, and perhaps hundreds, of the detainees
    were not even Taliban foot soldiers, let alone Qaeda terrorists. They
    were innocent, wrongly seized noncombatants with no intention of
    joining the Qaeda campaign to murder Americans.

  • The majority were not captured by U.S. forces but
    rather handed over by reward-seeking Pakistanis and Afghan warlords and
    by villagers of highly doubtful reliability.

Maybe an actual government body that does not report to the President, such as the judiciary, can finally enter the fray and habeas some of their corpuses. 

And by the way, I am soooo fed up with the counter-argument, "coyote, you are more interested in the rights of terrorists than security".  I answered this here, but in the case of detentions it is perfectly clear to me that the goal of detaining demonstrably dangerous folks does not require avoidance of judicial review.  I am sure this administration like any other does not like the courts or Congress looking over its shoulder, but they have to get over it.  The Administration has decided that the other branches of government can't be trusted, and the theme of many of their recent actions has been to fight against any separation of powers restrictions on the administration.

Related thoughts:  I see decent support in polls for these detentions and wiretaps.  My sense is that people who trust Bush are OK with him taking on these powers, and people who don't trust him are horrified.  The history of the Patriot Act is illustrative of this.  Most of the Patriot Act was originally proposed by Bill Clinton in response to Oklahoma City and the first bombing of the WTC.  At that time, Republicans opposed it, eventually defeating it in the Senate with the opposition led by... John Ashcroft.  Yes, I know the argument the world changed on September 11, but I think an even more important explanation of this turnaround for Republicans is that they did not trust Clinton, so didn't give him the power, but do trust Bush.  Of course the short-sightedness of this approach is stunning, since we know no party stays in power forever.  To Republicans, if you are comfortable with Bush being able to detain people of his choice without review and to wiretap without warrant, then you need to also be comfortable with Hillary Clinton, Howard Dean, or maybe Patty Murray having the same power some day.  Are you?  Really?  Because I am not comfortable giving the power to either party.

Yes, the world may have shifted on its axis on September 11, but not enough for us to throw out separation of powers.

UpdateMore here.


  1. Matt:

    I for one have no problem with the detention of enemy combatants. My problem is with the expansion of the definition of "enemy combatant" so far that it's capable of including an American citizen captured unarmed in Chicago. Once that's accepted, the only thing standing between us and Mao-style forced labor camps for members of the out-of-power party is the election of a Democrat to the White House.

  2. Max Lybbert:

    I couldn't think of how to best word this last night. However, the Constitutional prohibition against unreasonable search and seizure, or the requirement that the accused know the charges against him, and have the ability to face his accusers, etc. are all based on criminal law. For instance, Courts have sometimes forcibly committed insane people, but there were no charges, and there was no warrant, and the insane person didn't get a jury, and the insane person probably didn't even get a chance to speak in his defense. Even so, it was perfectly acceptable under the Constitution.

    POWs (or enemy combatents, since POW has a specific meaning) are captured and put into prisons, but they aren't accused of doing anything wrong. It's common to *not* lock up POWs (aside from keeping them inside a farm, but not locking them into cells), to give them access to a bar, and to let them write letters home. Yes, I know the Gitmo detainees don't get these priveleges -- I'm getting to that. The issue is that saying "they've been held for four years without being charged" is true, but beside the point. They aren't being held for being criminals, they're being held as part of war operations. If Al Qaeda bothered to capture some of their own prisoners, we could even trade POWs.

    However, these recent revelations are troubling. And the reason they're troubling actually can be found in the Constitution's "due process" clause. When the state commits an insance citizen (or non citizen, for that matter), there aren't any criminal charges, but there is a legal process. Likewise, the Geneva Conventions permit classifying detainees as something other than POWs, but after some sort of legal process. Hamdi permits the military to sweep up prisoners as that's as much a part of war as shooting bullets without a lawyer's approval, but to continue to hold those prisoners requires a legal process. I'm troubled by the numbers of detainees that are apparently not enemy combatents, and I think the root fo that is the fact that they haven't had due process.