Wednesday, December 22, 2010

Behold My Totally Awesome Criticism of Pres. Obama

Now, watch what I do here. I’m going to do something that’s never, so far as I know, been attempted.

I’m going to criticize Pres. Obama without engaging in hyperbole or personal attacks. I’m going to discuss an important policy matter over which I disagree – even strongly disagree – with the President, without calling him a sell-out or saying he’s stabbed me in the back, and without inadvertently (or not so inadvertently) repeating tea-party-inspired tropes like creeping fascism! or tyranny!

And I won’t say he’s “no better than Bush.”

It’ll be awesome.

So, here we go.

I disagree with the Obama administration over this:

Yesterday, the Obama administration indicated to reporters that long-awaited action codifying the Bush-era policy of indefinite detention for suspected terrorists would be put in place through executive order.

The Obama administration proposal differs from the Bush administration detention review process in that it would be more adversarial -- detainees would be represented by a lawyer, and the boards would be made up of more than just military officials. The process would be, as the New York Times’ Charlie Savage describes it, basically a kind of “parole board” for suspected terrorists.

The problem, as Adam Serwer correctly says in the piece quoted above, is this:

The use of indefinite military detention in armed conflict is well-established, but it’s not clear whether those who would be detained under this policy are actually “battlefield captures,” or whether military detention is a mere smokescreen for holding people indefinitely who should be charged with a crime or released. Complicating this is the reality that the fight with Al Qaeda has no defined endpoint.

Allow me to translate from Mr. Serwer’s more or less plain English to my native tongue: Legalese. The laws of warfare generally allow the warring factions to capture members of the enemy’s armed forces and to hold those combatants – in humane, non-punitive conditions – indefinitely while the underlying conflict goes on. In America, the laws governing capture and treatment of enemy combatants go back at least as far as the so-called Lieber Code adopted by Abraham Lincoln during the Civil War. After World War II, the international community – largely at the behest of the United States – adopted the well known Geneva Conventions which essentially codified existing laws of warfare, including Common Article III which provides the baseline for treatment of individuals captured during warfare even if they don’t meet the legal requirements for prisoner-of-war status. In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the United States Supreme Court held that Common Article III of the Geneva Conventions applies to detainees in the “war on terror,” including those held by the United States military at Guantánamo Bay, Cuba.

While Common Article III deals with, among other things, the conditions of confinement, it does not deal with the conditions for release from confinement, nor does it generally describe the length of time an enemy combatant can be detained. Which makes sense, because the purpose of taking an enemy soldiers captive isn’t to punish them but to incapacitate them – to take them out of circulation, so to speak, so they don’t have the opportunity to shoot or kill your soldiers. So, as a general principle, once a member of the opposing armed forces is captured, he or she can be held for the duration of the conflict or until the capturing force decides that the captured soldier no longer poses a threat. Often even in the midst of a conflict, opposing armies will, as a gesture of goodwill or out of humanitarian concerns, exchange prisoners. But there is not, so far as I know, any legal principle that compels one warring faction to release its captives until it, in its discretion, deems it safe to do so.

However, the legal parameters I’ve describe above assume that the conflict is a discrete and clearly defined conflict against a discrete and clearly defined enemy. If you go to war with Nazi Germany, you know whom you’re fighting and you know when you’ve defeated them. So you know when it’s safe to release the Germans you’ve captured along the way. Which is why one should not, as a general rule, go to war with ordinary nouns, like “terror”; one should instead always go to war with proper nouns – ideally, proper nouns that are country names, or at the very least, the names of organizations that function like military forces, like, say “Germany” or “Afghanistan,” or, at the very least, “al Qaeda” …

But when you go to war with “terror,” how do you know when it’s over? You don’t, and so you could argue that once you’ve captured a “terrorist,” you never have to let him or her go because you can never really defeat “terrorism.” One could also argue that you can never really defeat al Qaeda, because it doesn’t belong to a place or country, it doesn’t have brick and mortar institutions, or territory, or even much of an organization at all; it seems to be comprised of whatever extremists want to call themselves al Qaeda wherever they happen to be located. But theoretically, at least, you can determine when you’re done fighting al Qaeda and then, presumably, it’d be safe to release the various al Qaeda members you’ve taken into custody in Iraq or Afghanistan.

On the other hand, the government claims that some of the people held at Guantánamo are not just combatants in the traditional sense; they’re dangerous extremists who’ve engaged in acts of terrorism, killing innocent civilians and civilian authorities. But if that’s so, there’s a word for those people: They’re war criminals. Okay, that’s two words. The point is, if we’re holding individuals who did more than simply fight our military on the battlefield – people who were involved in the 9/11 attacks, or attacks against civilians in Iraq or Afghanistan, or even the attack on the USS Cole (unilateral, unjustified attacks against military forces can be war crimes, too) – those people should be tried as war criminals, with all due process rights afforded by our laws, and either convicted or acquitted. If we were able to afford Nazi war criminals due process, there’s no reason we can’t afford al Qaeda terrorists the same.

So that’s where the problem lies – the problem that the Pres. Obama’s new Executive Order won’t address. We have an obligation to determine which detainees are subject to prosecution for war crimes and which detainees are mere combatants being held not because they violated the laws of warfare but because they were simply captured in battle. As to the former, the solution is simple: Put them on trial. As to the latter, the decision has to be made whether it really makes sense to hold them until the war is over or to let them go now.

The proposed Executive Order, apparently, will require a periodic review of the detainees’ status, but that, it seems to me, is just pushing the problem down the road, and the review, even if it’s “adversarial” in nature, doesn’t provide the kind of due process rights detainees are entitled to, as the Supreme Court has recognized in a long line of cases from Rasul v. Bush, 542 U.S. 466 (2004), to Hamdan v. Rumsfeld, 548 U.S. 557 (2006), to Boumediene v. Bush, 553 U.S. 723 (2008). Some review is, of course, better than none; but it’s no substitute for what the law requires. If these folks are guilty of crimes, try them. If not, why are we still holding them?

So, there you go. Pres. Obama is wrong to continue the Bush policy of indefinite detention of Guantánamo detainees, and the Executive Order we’re about to see will exacerbate, not solve, that problem. I disagree – vehemently, even – with what the President’s doing here.

But I keep looking over my shoulder, and I don’t see a knife sticking out of my back. I see a real difference of opinion, and an important one at that, but I’m not exactly wracked with despair because I happen to think the President is wrong this time.

See, wasn’t that awesome?

© 2010 David P. von Ebers. All rights reserved.


  1. Great, well written piece. The problem seems abundantly clear, and you have failed to deliver a viable solution.

    In short, some of the evidence on certain detainees is slim to none. We are aware however that they at the very least have connections to terrorist groups. If released there is legitimate concern they will potentially be a threat.

    I am not here to argue the merits of this depiction, I am simply stating the facts. I am also not asserting that ALL the detainees at Guantanamo Bay's prison are dangerous.

    The question is how do we implement a policy that is consistent with American values, while at the same time keeping the dangerous combatants from returning to the battle field and helping plan attacks.

    I am with you that the "war" against "terrorism" is a false war. You cannot defeat a tactic & indefinite detention of these individuals may be fueling the fire. Its a very difficult issue, I'm glad I don't have to make the decisions.

    -Ryan Colpaart
    Founder, Editor-In-Chief
    Double Dutch Politics

  2. When we fail to recognize betrayal as betrayal, we invite more betrayal. Call that a hyperbolic personal attack by a leftie brainwashed by teapartiers if you like.

  3. Great, well written piece.
    How do we implement a policy that is consistent with American values? Where the evidence is slim to none and there is only "connections" to terrorist groups we let them go. The number of people for whom there is legitimate concern they will potentially be a threat is in the millions. The problem with this solution is if anyone Obama releases blows himself up or otherwise get caught being a terrorist (something they might be more inclined to do after being wrongly imprisoned for years) it's political disaster. So for Obama putting it off makes sense. If he gets beat in '12 he can do it as a lame duck. And maybe the horse will sing.

  4. I will submit that while the "war" on terror, or terrorism, is not a "declared" war in the sense of an official Congressional Declaration of War against a country or government, it is nontheless a war in every other aspect. I might add that this has been a "war", or battle, that has been waged since we won our independence over the course of our country's history. We have always combated enemies, "both foreign and domestic", that sought to undermine or destroy the government of our nation, and it's people, throughout the tumultuous history of our relatively young country.
    I think what we have here is a combination of legal, pragmatic, and cautionary thought. It appears to me it has considered the Geneva Convention, military jurisdiction, civilian participation, the rule of law, the definitions of war, combatants, and prisoners, and the precedents of the decisions of the US Supreme Court.
    The liberal in me sees your point, but I am a pragmatist and cautious man in this instance.
    I see this as somewhat progressive, a step forward from the Bush methods, but also a cautious, rational, step in dealing with the contemporary enemies of this country, the legal issues, and the protection of our citizens and our borders.
    Some critics may say it does not go far enough, is not "liberal" enough, and does not adress the issues of the previous administration... while others may say it goes too far, is too " liberal ", and undermines our security.
    If there were ever an instance for the need for due diligence on issues of individual rights, the rule of law, fairness, jurisdiction, and national security, it is here.
    The Obama Administration has made subtle, not radical, changes to the system. They have only taken some small steps, and made small changes in adressing the issues of rights, fairness, due process, national security, and jurisdiction of the military and civilian courts. Too do too much, and move too fast, would be irresponsible and dangerous.
    I think their discretion and restraint in the progressivity of change in this matter is warranted, and should be accepted, if not commended, by all.

  5. I am grateful for this clear breakdown of the detention issues as well as the essential problem with the executive order. I agree with Mike that the President has a perilous balancing act to perform. As he has in the past, President Obama may be entering into a compromise that baffles us until it's over, by which I more or less mean stalling for time while he accomplishes other goals rather than lose it all by ferociously sticking to principles. But Mike, don't you mean "maybe the dog will talk"?

  6. The problem with giving these people a trial is that the evidence is tainted because it was obtained by torture and should and would be excluded because of that. Therefore known terrorists would not be convicted. The question is whether America truly believes in the rule of law. The chicanery of these past years since 9-11 suggests it does not.

  7. Thanks, everyone, for the great comments. I will try to go through these in the next few days and address specific points, but I think there’re a lot of constructive ideas here.