Friday, May 22, 2009

Let Me Talk You Down, Rachel, Hilzoy, et al

This is going to be quick because I'm literally on my way out to work. I've asked my lefty lawyer sister about Obama and preventative detention for some of the Gitmo detainees and the issues surrounding it. By the way, I'd put money on her in a constitutional cage match with any lawyer from the Center for Constitutional Rights or just about any other for that matter. She's wicked smart and very good. She also predicted that there would be this problem of tainted evidence against people we might not be able to let go. What she says, just from reading that part of the speech - is that what Obama is talking about is within the Geneva Convention rules. It does not appear to be about any "unprecedented presidential power" as was asserted on the Rachel Maddow show last night. She's going to study the whole thing and tell me more over the weekend, but this is what I've got off the top of her head:

First a military commision designates who is and who isn't a POW. The Bush administration decided to get around all that by making up the designation of "unlawful enemy combatant" and the Obama administraton is now forced to sort that out years later. Then, once designated a POW we can detain the person for the legnth of the conflict. What could pose a political problem for the administration is that POWs are supposed to be held in humane - very humane - conditions. They are not charged with a crime. The principle is that they're being held to keep them off the battlefield. They wouldn't have to go as far as we did during WWII with some Italian POWs held in the NY area. Some of them got furloughs to go visit Little Italy. We probably wouldn't be doing that. But they should properly be kept in better conditions than prisoners who have been convicted of a crime.

It's not pretty, but it's not ad hoc either. There are complications due to the fact that this conflict is of a different nature, of course. For one thing, if you're designated a POW and the conflict is an insurgency, you could be detained for a long, long time. If the previous administration had been interested in the rule of law everything would be in place by now, but it was more interested in getting around the law. That is one of the many huge differences between the Obama and Bush administrations.


  1. Thank you.. that helps a lot of people I know over at Cesca's.. I will point it out to them and tell them to come look at it and that you will try to get more on it later.

    I was sure that it was much ado about nothing, Greenwald and Rachel both have just been foaming at the mouth this week over some of this stuff. I can't believe they are going so crazy.

    The other thing Rachel is stressing over is the DADT.. Pres. Obama keeps saying he is waiting for Congress to send him a bill, instead of her asking members of Congress about it.. she keeps hammering the President and having Ana Marie ask Gibbs about it in the Daily Pressers.. just dumb I think. To me that's not the answer.

  2. Obama had enough on his plate with the economy and health care. He didn't need this thrown on it as well and if Bush had done the "right thing" Obama wouldn't have to be dealing with it now.

    I think getting this all straightened out correctly and legally is going to be a bigger problem than anyone could have thought.

    Goddamn you Bush! Goddamn you Cheney! I hope they both end up in prison and rot there!

  3. Zen, thanks for your comment at my place.. I will be looking for your sisters remarks. It does help. Yes, I agree with you, about the trust but that's what I was saying to. I know it is hard, but we really do have to try, even with all the mess he has on his plate, I still think he is doing well. We just have to remember, if Bush hadn't started GitMo, we wouldn't have to worry about closing it.

    Just another one of those Blame it on Bush things I guess... Hope you have a great weekend.

  4. I just found this opinion by one of our esteemed Senators at Fire Dog Lake.. Thought it was interesting to say the least.

    Democratic Senator Sheldon Whitehouse:

    To argue by analogy, one can go to court and to a civil standard of proof show that someone is a danger to themselves or others, and obtain a civil commitment restricting their freedom. If we can do this with Americans, it seems logical that we could also do it with foreign terrorists. The question is, what checks and balances should surround the initial determination of danger, and what safeguards should stay with the person through the period of confinement? I look forward to hearing more from the Obama Administration about what schedule of rule of law safeguards they intend to apply, but I think that the example of civil commitment shows that it is not categorically forbidden to restrict someone’s freedom based on a finding of danger.

    Of course, Digby is having fits about it.. but there it is.. something to think about

  5. Thanks for posting this. I thought it was just me. I agree with your sister completely. I couldn't quite figure out why Rachel was having a cow over this. Obama is nothing like Bush who left a huge pile of gnarly hazards to unravel. I look forward to your sister's full analysis that you commented about at Annette's blog.

  6. Thanks. From what I've seen this sentiment is growing on the left side of the web. We would very much like the people we like best to take it down a bit in the area of trashing our president. Criticize policy - sure. Everyone's entitled. But he's not Bush. In fact almost no one deserves to be compared to the Cheney/Bush administration - least of all Obama. We may need to form a support group. :)

  7. Zen, thanks for sharing what your obviously smart sister shared with you. I look forward to seeing further remarks from her.

    President Obama is nothing at all like the prior MIS-administration. Not even a little.