On March 13, 2009, President Obama abolished the term “enemy combatant” as a designation for our detainees in our “War on Terror”, while continuing to assert that we still have the right to detain some of them indefinitely without trial.

There are many civil rights advocates (including me) who are very upset with that decision. It was pointed out in a recent post that there are many important differences between our detainee policies under President Obama vs. those that applied in the previous administration, the former being superior to the latter in every respect. Those points are valid. But in my opinion the differences are not great enough.

My main problem is with the idea of preventive indefinite detention. Preventive detention means incarcerating a person for acts that he is presumed likely to commit in the future, rather than for acts that he has already committed. In this case the incarceration is for an indefinite period of time as well as preventive, because the detainee is not to be given a chance for a trial.

The conditions under which the Obama administration is claiming that it may choose indefinite preventive detention is when the detainee cannot be given a trial for some reason, and yet is deemed too dangerous to release.

During war time, a nation’s prisoners may legally (according to international law) be broadly classified into one of two categories – prisoners of war and those who are subject to the normal criminal justice system. The definition of “prisoner of war” under the Geneva Convention is long and somewhat complicated, so I won’t repeat it here. But typically it has been applied to enemy soldiers captured on the battlefield, who may then be detained for the duration of the war.

Some DUers have suggested that President Obama’s idea of preventive indefinite detention is in accordance with international law, on the basis that it would apply only to “prisoners of war”. That would of course preclude the need to enter those detainees into the criminal justice system, which would require a fair trial and conviction for a crime in order to legally continue to incarcerate them. It is not clear to me that the Obama administration intends to classify these detainees as prisoners of war, or if they already have done so. But even if they do I still have a lot of serious problems with indefinitely incarcerating these people without trial:


Illegitimacy of the Iraq and Afghanistan wars

With regard to those detainees who were captured on the battlefields in Iraq or Afghanistan, I believe that the illegitimacy of those wars strongly argues against indefinite detention. The illegitimacy of the Iraq War is widely acknowledged, so I won’t discuss that further. The illegitimacy of the Afghanistan War is not as widely acknowledged, but still I believe that it is clearly illegitimate.

The Taliban maintained from the beginning that it would give up Osama bin Laden if proof was offered of his culpability in the 9/11 attacks on our country. They agreed to extradite bin Laden to Pakistan – an American ally – to stand trial for charges of participation in 9/11. But George Bush turned down all Taliban offers, saying “We know he’s guilty. Turn him over”.

One of the major purposes of the United Nations is to prevent unnecessary wars. Therefore, it is not surprising that its charter says: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”. Clearly, George Bush’s actions with respect to his invasion of Afghanistan fall well outside of that mandate. Maher Osseiran explains the implications of that:


If our invasions of those countries were illegal, then it is just as illegal to declare prisoners taken in conjunction with those wars and occupations as “prisoners of war” or to incarcerate them indefinitely. Those people were defending their country against an invasion by a foreign power. Who would say that they deserve to be incarcerated for the rest of their lives for that?


Indefinite war

In any event, President Obama has never said that detainees picked up on the battlefields of Iraq would necessarily be released after our war against Iraq is declared over, or that detainees picked up on the battlefields of Afghanistan would be released if and when that war is ever declared over. Rather, much of his rhetoric, as with the Bush administration, suggests that the “war” in question is the “War on Terror”. It has been said many times that this “war” will last a very long time or that it, perhaps 100 years. And indeed, there appears to be no end in sight.

The provision in the Geneva Convention that holds that prisoners of war may be held for the duration of a war did not anticipate a perpetual war. The idea of declaring ourselves to be in a perpetual war on the basis of there being people out there who would like to do us harm is absurd. All countries have enemies who would like to do them harm, and yet perpetual war has never been declared on that basis – at least not in modern times since the creation of the United Nations. The Soviet Union posed a MUCH greater threat to us during the Cold War than anyone poses to us today. And yet we never pretended that the Cold War provided an excuse for taking prisoners and incarcerating them indefinitely without trial. That is an entirely new concept, developed by George Bush and Dick Cheney, and it is absurd.


Circumstances of capture

Many of our detainees were not captured on any battlefield, and it is not at all clear that the Obama administration plans to exempt them from indefinite incarceration – In fact it appears that they do not plan to exempt them.

The Obama Justice Department has claimed that “Law-of-war principles do not limit the United States' detention authority to (those captured on the battlefield). A contrary conclusion would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians."

What that reasoning fails to acknowledge is that when alleged enemies are captured off the battlefield, their status as enemies is not obvious. Indeed, that is a major reason why prisoner of war status has traditionally applied only to persons captured on the battlefield, and that continued incarceration of other presumed enemies requires a trial.


The idea of preventive indefinite incarceration is inhumane and repulsive

In any event, President Obama has said that the criteria for indefinite incarceration of our prisoners are our inability to give them a trial, combined with the assessment that they pose a danger to us. That policy is deeply troubling to me and to many others.

First, consider why we can’t offer them a trial. In some cases the reason is said to be that we have tortured them, and evidence obtained under torture is inadmissible in court. However, if evidence of guilt of crimes is available by other means (than torture) it would be admissible. So what exactly is the problem?

But apparently according to President Obama’s statements on this issue, the guilt of crimes committed by our detainees is not the issue. Rather, the salient issue is that they pose a danger to us in the future – regardless of whether or not they have ever committed a crime. The idea of incarcerating people for life based on the presumption that they might commit a crime in the future is thoroughly alien to democracy.

And how would it be determined who poses such a danger to us? Since there would be no jury involved, it seems highly likely that decisions on whom to incarcerate would be made on a political basis. The policy itself is the result of political considerations. Congressional Republicans, abetted by our corporate news media, have warned us in hysterical terms that the American people will be in grave danger if our detainees are even transferred to high security prisons within the United States – let alone released. Individual decisions regarding individual detainees, in such a lawless system, are bound to be casualties of the political process as well.

Anyhow, I don’t believe that a person for whom we lack evidence to prosecute for a crime would pose a substantial danger to the American people. Or rather, I believe that whatever danger they posed to us would pale in comparison with the danger that our own government poses to us if allowed to incarcerate people forever on the basis of presumed future crimes.

And finally, just imagine the outrage if some other country kidnapped a single American citizen and announced their intentions to incarcerate him forever without trial. Even with the offering of a trial, our leaders would probably whip us into a state of frenzy designed to push us into war. We really should think about how we would feel if the tables were turned on us.


Collateral consequences

What if life-long incarceration of all detainees who are deemed to pose a remote threat to us does occasionally prevent these people from committing violence against Americans? Against this possibility, it also behooves us to consider the adverse consequences of such a system.

Major Matthew Alexander, who spent 14 years in the U.S. Air Force and personally conducted 300 interrogations of prisoners in Iraq, describes how abuse of our prisoners endangers American lives by greatly facilitating the recruitment of anti-American terrorists to al-Qaeda. Though Alexander’s use of the word “abuses” primarily refers to torture, there is every reason to believe that if torture facilitates the recruitment of anti-American terrorists, indefinite incarceration without trial is likely to do the same. Based on the hundreds of interrogations that Alexander has conducted, he says:


And James Galbraith, from his book, “The Predator State”, explains how the abuses of our power sow world-wide distrust, which consequently weakens us as a nation:



The road to tyranny

Paul Grenier, a former Russian interpreter for the U.S. State Department and U.S. Army, recently discussed with me the views of Sovietologists on the implications of current U.S. policy regarding preventive incarceration. He told me that, whereas most Americans are generally not at all prone to recognize this, all of the Sovietologists whom he is aware of see a striking similarity between that policy and the policies of the former Soviet Union under Stalin.

He also touched on this issue during a recent meeting that he and I had with the staff of our Congressman, Chris Van Hollen, in which we urged him to support measures to investigate and hold the Bush administration responsible for their crimes. For that meeting, Paul presented the following prepared remarks:


Although these comments were directed at the Bush administration, to the extent that the Obama administration continues the Bush administration policy of preventive incarceration, it applies in large part to the Obama administration as well.

Nor does it matter, in that regard, whether or not we close down our Guantanamo Bay detention camp. What is most important is not where we keep our detainees, but that we treat them fairly and in accordance with international law. It would be far better to keep Guantanamo Bay open, while radically changing our policies towards a more humane, fair, and legal direction, than it would to close it while continuing our policy of indefinite preventive detention elsewhere.


Conclusions

Some DUers have suggested that we give President Obama’s policies a chance to play out before criticizing him over them. After all, we don’t even know yet what his policies will look like in their final form. But at the very least, President Obama has sent up a trial balloon saying that he currently intends to go the preventive incarceration route. If we don’t shoot that down before it becomes established policy, it may become so firmly entrenched that it will be impossible to get rid of it later.

Recently a fellow DUer (whose name I don’t recall, and I wouldn’t print it if I did) wondered if it wouldn’t be worth ignoring abstract human rights issues such as indefinite preventive incarceration in return for making us safer, as President Obama has suggested. I’m certain that this is indicative of how many Americans feel about this subject.

But I just don’t understand how incarcerating people for life based on the presumption that they pose a risk of committing future crimes can be considered an abstract issue. We’ve been doing this for years, we’re still doing it, and our President says that he plans to continue doing it. This is surely the road to tyranny – if not fully realized under the Obama administration, then probably under another president, unless our policy is reversed before it becomes too ingrained to be reversed. Why would anyone consider this issue abstract?

Could it be that most Americans have some misguided belief that because these outrages are perpetrated against Muslims, they don’t have to worry about this? Here’s what Martin Niemoller had to say about the Nazis a long time ago:


Most Americans don’t take that seriously because they see themselves as so different from Muslims, for example, that deep down inside they must believe that whatever we do to them, it couldn’t be too bad or too undeserved.

That point of view is indicative of a woeful lack of feeling of solidarity with our fellow human beings. The rest of the world is taking note. These policies will blow back on us if we don’t reverse them – and we as a nation will have no basis for indignation when it does.