Preventive Detention

Many people on the web point to the key and very alarming passage in Obama's speach on what to do with prisoners now in Guantanamo. It seems he decided to abandon Habeus Corpus.

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here—this is the toughest single issue that we will face. We’re going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

I am alarmed. The paragraph is pretty clear, even people who can't be prosecuted will be locked up indefinitely (the next paragraph ends "We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified").

Oddly in 2 of 3 examples of situations in which we need incarceration without prosecution, Obama considered the case of criminals. Those who have sworn allegiance to Osama Bin Laden and those who have received extensive explosives training in al Qaeda camps have conspired to commit acts of terrorism. If those facts are demonstrable, those people can be tried and convicted in civilian courts. José Padilla was convicted basically because his fingerprints were on a Mujahedin information form.

There is one way to make sense of those examples. Obama is saying that there are people who have done something and therefore must be locked up but who can't be prosecuted, because there isn't enough evidence that they did the deed. That is, he is claiming that he knows things even though he doesn't have proof and asking us to trust him with the power to lock people up based on his esoteric knowledge even though he knows he can't convince a jury. This is shocking.

Fortunately there is a third example. The Taliban are still at war. The rules of war, which are totally difference from the law of peace, allows them to be held as prisoners of war for the duration. Furthermore, as far as I know, prisoners of war have never been allowed a trial in which they claim they should not be prisoners of war.

in compenstation, POW status is honorable. I see no way of arguing that someone can be held without trial and yet not a POW for the purposes of the Geneva convention. One or the other.

I think the fiction that it is not unpleasant to be a POW is needed to support the vital principle that to hold someone as a POW is not to punish him or her so that proof of combatent status and a trial are not required. However, I think it is clear that the Geneva convention forbids holding POWs in super max prisons. Now this fiction (which was acceptable to the founders and Abraham Lincoln, who took prisoners of war) may lead to releasing a suspected member of al Qaeda for lack of evidence while we hold a Taliban officer. Someone who is in fact guilty of a crime (but we don't know this fact for sure) gets off while someone who just served the regime effectively in power in his country at the time is locked up. This sounds unjust, but is one of the akward results which must occur if one tries to hold to the rule of law and doesn't rule out war altogether.