Detention at the President's Pleasure

The whole Guantanamo issue has to be one of the great bait and switches of our time.  The fundamental human rights abuse was always the notion that civilians could be seized by the US Government and held, as they say in Britain, at the President's pleasure  (ie as long as the Administration wants, up to and including forever).

Somehow, this whole issue got perverted into a debate about Gitmo, rather than detentions per se.  I warned any number of times that if we kept focusing on merely the location of detention, rather than detention itself, it would give the government cover to close the facility and declare victory, while continuing the abusive practice of indefinite detention.

Unfortunately, I was right, both in this fear and my fear that Obama, once give presidential power, would be reluctant to eschew it.

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

Unsurprisingly, after talking about various approaches for Congressional or Judicial oversight of Administration detention decisions, the Administration has apparently dropped plans for this.  Even the "security courts" of which I have always been suspicious (I always picture a jury full of TSA airport security screeners) have been ruled out by Obama.  We are back to the Bush doctrine of detention at the President's pleasure.


  1. John Moore:

    It has always been true that the administration, during war, could hold enemy combatants indefinitely. The terrorist case is on the edge of this because:

    1) The presence/absence of a state of war is harder to determine - at least in a legalistic sense

    2) The combatants are normally not wearing uniforms. In prior wars, they would have had immediate military trials followed by execution.

    The terrorist detainment issue should only be a real worry to Americans (other than trans-nationalist internationalists, who are only nominally American) if they seek to apply these powers to American citizens or others captured on American territory (where the Constitutional rights extend beyond citizens).

    That is not the case here.

    Also, quasi-judicial proceedings should be required for the prisoners (as is normally the case with un-uniformed combatants before they are executed). These should not provide US Constitutional rights, for obvious reasons.

    Note that the Bush administration and Congress worked to set up procedures for these, but those procedures were terminated by Obama.

    Finally, an important point: the president cannot detain anyone longer than 8 years (the maximum length of his term). A democratically elected successor then appears and can change the decision. Hence this is not a one-man, dictatorial outrageous human rights violation.

  2. stan:

    Gitmo is a great example of how the left works. The news media hypes ridiculous lies about harsh treatment of those in the facility. The wackos get outraged about the facility. Eventually, the focus is entirely on the facility and the idiots come to believe that closing the facility would somehow magically eliminate the issue and transform the US into an object of love for people all over the world.

    To be this stupid, one would have to be dumb enough to think that Obama was going to bring ethics and transparency to the White House. Or that enormous tax hikes and massive regulation will create millions of green jobs.

  3. Dr. T:

    The military made a gigantic blunder when it moved captured, non-uniformed enemy combatants from the mideast to Cuba. The military should have established high security prisons in remote areas of Afghanistan and Iraq in the hopes that their fellow guerillas and terrorists would try to rescue them. They would have nailed lots more bad guys at the prisons (instead of waiting for them to set up IEDs in the cities).

    The added benefit of keeping the prisons near the areas of combat is that fewer reporters will be around to harass the military about the 'innocence' of the prisoners and the poor treatment of the prisoners.

    Perhaps we should have followed a different path: under international law, non-uniformed enemy combatants can be executed without trial.

    We can see from the farce that recently occurred (the release of the Chinese muslim prisoners) that no one really believes these are innocent men. We had to pay countries to accept them (and they probably will expel them ASAP). Obama, not surprisingly, looks like a fool in regards to the Guantanamo prisoners. We will end up scattering them among multiple military prisons within the continental US: not exactly an improvement over keeping them at Guantanamo.

  4. Pieter:

    You are absolutely right. Obama's obfuscation on this issue has been terrible. Innocent people have been arrested and imprisoned for years because of the policy of indefinite detention, and Obama, despite making some positive steps when he came into office, has essentially done nothing to end this.

    Some of the other commenters have doubted the existence of innocent prisoners. The Uigher prisoners, people who were trying to resist the Chinese dictatorship, were captured in Afghanistan under the typically dubious circumstances, and then no country was willing to allow their return, so, despite the military rapidly recognising the innocence of these prisoners, they were held for years.

    As for the reach of the constitution to foreigners captured abroad, people everywhere need protection from the power of governments. The US constitution was created to provide the protection to US citizens when it was believed that the reach of the US government did not extend beyond its borders. Obviously, while we might wish for foreigners living abroad to be well protected from their governments, there is a limit to what we can do. On the other hand, when it is our own government that is capturing people and holding them, the only government that can be held to account is our own, and it should be forced to abide by our constitution, even in treating noncitizens.

  5. Ian Random:

    Speaking of location. Ever notice that the mainstream media never compared the happenings at Gitmo to the political prisoners in Cuba.

  6. John Moore:

    On the other hand, when it is our own government that is capturing people and holding them, the only government that can be held to account is our own, and it should be forced to abide by our constitution, even in treating noncitizens.

    Nonsense. Those constitutional protections were written for people living and participating in a constitutional government or in a land operating under such. The detainees that we captured do not meet that criteria in any way.

    While we need to be as humane as possible, we also have a little problem: a whole lot of them want to kill us (a significant percentage tried again after they were released, and those were the ones we thought were low threat).

    As for the Uigers, that is indeed sad. But guess what... in the real world, tragedies happen even when the good are fighting the evil. At least they were treated very well, once it was realized that they were not a threat to the US.

    They were not, however, innocent. They were terrorists - and even if you agree with their cause (fighting the Chicoms), their willingness to use terrorism puts them outside of civilized society and deserving of no protection whatsoever.

  7. markm:

    John: You forgot:

    3) Many of those detained had not been captured on the battlefield or by our own forces. A good many of the Gitmo detainees were sold to us by bounty hunters, with nothing but the bounty hunter's word that they were in any way associated with our enemies.

  8. Not Sure:

    "While we need to be as humane as possible, we also have a little problem: a whole lot of them want to kill us (a significant percentage tried again after they were released, and those were the ones we thought were low threat)."

    -John Moore

    Suppose an enemy of yours received a bounty for pointing you out as a terrorist to some other country's government, you were captured and transported there and while in detention, tortured. Once you regained your freedom, do you think you might harbor any hard feelings towards your captors/torturers?

    I'm just sayin...