Obama Continues Indefinite Detention of Terrorism Suspects

Rusty Shackleford:

Bush-Hitler: Holding terrorists indefinitely without charge in Gitmo.

Hope-Change: Holding terrorists indefinitely without charge somewhere else.

As Jacob Sullum notes in much more thorough post, it’s a natural consequence of the Obama administration’s continuing the Bush perspective that we’re at war with terrorists.

In Holder’s view, then, we are engaged in a war that started years before we noticed it and may never end, at least not in any definitive way. The enemy is not simply the guy who shoots at you on the battlefield, who can be readily identified; he can be anyone, anywhere who helps anti-American terrorists. He could be a guy captured in the Philippines suspected of funneling money to Al Qaeda, or (presumably) he could be the employee of an Islamic charity in the U.S. that is accused of sending money to Hezbollah. Given Holder’s invocation of cyber and mental battlefields, the enemy could even be someone accused of fomenting terrorism through incendiary online criticism of the U.S. government. The implication is that any of these people could be held in military custody without trial until the cessation of hostilities, i.e., indefinitely.

Right.

This was entirely predictable and, indeed, predicted by several of us here at OTB and by other analysts.  Being president is a hell of a lot different than being a candidate for president. No administration is going to simply release possible terrorists and take the resultant risk.

The key problem with the Bush policy wasn’t detention but rather the lack of even a modicum of due process.  So long as the Obama administration comes up with a way to let suspects put forth evidence that they’re not who we think they are, we’ll have moved forward.  Sullum isn’t happy:

Such suspects need not even be tried by military tribunals; they could simply be identified as “unlawful enemy combatants” through a process that is yet to be determined but that will certainly be much less rigorous than a full-blown trial. What will be the basis for deciding which suspects get full due process and which get something far less, which receive determinate prison sentences and which are held indefinitely? If the option is available, it will always be tempting to take the easier route, which could mean that every case related to terrorism will be militarized. Then anyone accused of aiding terrorism can forget about justice as it is usually understood.

So long as we treat terrorism as a national security problem rather than a criminal justice problem, no one should expect different.

FILED UNDER: Law and the Courts, Terrorism, US Politics, , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. davod says:

    “The key problem with the Bush policy wasn’t detention but rather the lack of even a modicum of due process. So long as the Obama administration comes up with a way to let suspects put forth evidence that they’re not who we think they are, we’ll have moved forward. Sullum isn’t happy:”

    Rubbish:

    What modicum of due process was required under the various laws of war?

  2. James Joyner says:

    What modicum of due process was required under the various laws of war?

    The ability to present evidence that you’ve been falsely imprisoned.

    According to the International Committee of the Red Cross, these fundamental rules of due process, derived from the Third and Fourth Geneva Conventions, the Additional Protocols, and customary law, apply to anyone detained in connection with armed conflict or occupation:

    Civilians detained for imperative reasons of security have the right of appeal, to be decided with the least possible delay, and the right to have their detention periodically reviewed. (In non-international conflict, detainees have the right to challenge the legality of their detention.)
    No one may be convicted or sentenced unless he has received a fair trial affording all essential judicial guarantees, including the following rights:
    to be tried by an impartial and regularly constituted court;
    to be presumed innocent until proven guilty;
    to be told—early on and in a language he understands—what he is accused of;
    to be given the necessary rights and means of defense;
    to be tried without undue delay;
    to be able to examine witnesses against him;
    to have the assistance of an interpreter, if necessary;
    to be tried in his presence;
    not to be required to testify against himself or to confess guilt;
    to have judgment pronounced publicly;
    to be told of his rights of appeal and what time limits there are;
    to be convicted only of a crime that he himself committed;
    not to be punished more than once for the same act; to be convicted only for what was a crime at the time of the act in question, and to have a sentence no more severe than the law allowed at the time of the act in question.

    Cite

  3. davod says:

    Held until the end of hostilities.

  4. PD Shaw says:

    Of course, James, the United States did not sign all of those protocols, some of that stuff is just made-up preferences of the Red Cross, and others have no bearing on non-crime based detentions.

  5. Bithead says:

    If I recall, Clinton treated the war against us as a criminal jusrtice issue, too. A quick check shows there’s still a pit in southern Manhattan providing mute testimony as to how that plan worked out.