Preventive Detention, at What Cost?

A family vacation over Independence Day offered a poignant reminder of why, over 30 years ago, my parents sought refuge in the U.S. Fleeing the racial hostility they encountered in Britain after escaping the brutality of the Indian Subcontinent's Partition, they found in rural Missouri economic opportunity, political freedom, and small town Midwestern hospitality. Today, the specter of preventive detention calls into question whether my parents' grandchildren will enjoy the same freedom.

Warrantless domestic spying, detention without trial, torture, and excessive secrecy raised concerns across the political spectrum and fueled recent change in the White House. These policies, however, remain equally noxious under the new administration, which currently entertains proposals beyond even its predecessors' wildest plans.

We should begin by removing the beltway spin. Whether called "preventive," "indefinite," or simply "prolonged," prevention detention schemes are essentially lawless, unconstitutional, and un-American. And whether established through an executive order or an act of Congress, they would undermine -- not enhance -- our national security.

At root, detention without trial threatens democracy. According to NYU law professor David Golove, "The struggle for constitutional liberty," wherever people have sought it, includes "a struggle against preventive detention." Our Founders did not champion the rule of law in a vacuum. They confronted threats, including arbitrary detention, and intended the Bill of Rights to end and prevent them.

The rights to Due Process, legal representation, and to examine one's accusers, witnesses and evidence are fundamental. Beyond mere technicalities, these procedural protections are necessary to protect the innocent and lend legitimacy to judicial decisions.

Benjamin Wittes and others propose limiting these rights and detaining individuals accused of being "dangerous," based on hearsay evidence. But they overlook the central problem: accusations are unreliable.

Courts admit evidence of actual events, rather than predictions or hearsay, precisely to exclude irrelevant or unreliable information. Torture, for instance, is notorious for yielding inaccurate intelligence and forcing false confessions. Equally unreliable are individuals who identify suspects in exchange for payment, such as tribesmen who captured many Guantanamo detainees, or ex-convicts hired by the FBI to infiltrate mosques across the country.

Our intelligence agencies, whose hearsay evidence would be admissable under some detention proposals, have proven their unreliability. Time and again, attempts to identify dangerous individuals have instead swept up innocent people, including U.S. citizens of all colors.

Most of Guantanamo Bay's hundreds of detainees have been either released or declared harmless. We have abducted law-abiding people from allied countries and outsourced their torture (Canadian Maher Arar); detained and smeared law-abiding Caucasian and Asian American citizens (attorney Brandon Mayfield and Chaplain James Yee); and tortured a U.S. citizen of Latino descent (Jose Padilla). In addition, government "watch lists" continue to cast unjustified suspicion on over a million law-abiding Americans.

Given the unreliability of intelligence sources, indefinite detention based on evidence inadmissible in federal courts would hardly enhance security. It would, however, undermine freedom and -- by removing checks on executive avarice and arbitrariness -- leave no one safe: under an administration hostile to dissent, an unpopular bumper sticker or dispute with a neighbor could land you in prison.

Even if hearsay evidence were reliable, the security benefits of preventive detention would be trivial. Individuals can be imprisoned by federal courts under existing laws for even providing humanitarian support to regions governed by militants -- let alone actually planning terrorist attacks. The only potential "threats" addressed by preventive detention, then, are individuals accused without reliable evidence.

Whom, exactly, would these individuals be? In both the distant and recent past, America has criminalized law-abiding people for their politics (through the Alien and Sedition Acts, the Palmer raids, COINTELPRO, and the Red Scare, for example) or race, ethnicity or religion (through the Japanese internment, NSEERS, and Operation Frontline, for example). By expanding this shameful list -- and by further eroding our international claims to defend the rule of law -- preventive detention would only undermine the security of law-abiding Americans and help our enemies in their efforts to recruit foot soldiers.

Our Founders crafted the Constitution over 200 years ago to balance strong government against individual rights. Their vision has served us well through the World Wars, periods far more dangerous than ours, and is fundamentally incompatible with proposed detention schemes. For the Constitution to survive today's "war on terror," we Americans who value freedom must once again raise our voices to defend it.

Comments

[JohnHKennedy]

"Warrantless domestic spying, detention without trial, torture, and excessive secrecy raised concerns across the political spectrum and fueled recent change in the White House. These policies, however, remain equally noxious under the new administration, which currently entertains proposals beyond even its predecessors' wildest plans."

We agree with you Shahid and will do whatever we can to help BORDC.

We think it all comes down to Prosecution. We have to push President Obama, Attorney General Holder and our Congressional Democrats to investigate and prosecute all violations of Federal Laws during the Bush Administration, especially our Federal Torture Laws.

Only Prosecution deters crime.

We have to make an example of the Bush criminals or it will happen again and again until we lose our most cherished freedoms.

SIGN THE PETITIONS
Demanding
both a Commission of Inquiry
and a Special Prosecutor
For All Their Crimes
at ANGRYVOTERS.ORG

http://ANGRYVOTERS.ORG
.

[Shahid Buttar - Huffpost Blogger]

Just to suggest an alternative view, I think the right wing cares about America, too. But you see in differing attitudes among conservatives a split between two perspectives.

One -- like those of JGriffin and True Blue American above -- is beholden to conservative political interests and ignores the philosophical premises of conservativism. These people don't hate America. Thy just don't know how to love it, because they overlook the role of our principles in making our nation an international beacon of freedom. They take for granted our historical role and accept the dubious premise that the world will not question its allegiance to the U.S. Bush proved them wrong. Some choose to ignore that, too.

A competing conservative perspective, however, is quite aligned with what I perceive as your own. Libertarians once called themselves liberals, developing a robust set of individual rights as a response to overweaning central government. The Founders primarily come from this tradition. The term "liberal" was more or less captured by progressives in the last century, who came to recognize in the market the same threats once posed by monarchs. 20th century liberals expanded the tools developed by libertarians (individual rights) to include civil, social and communitarian rights.

That tension was the primary ground for political debate in the U.S., until the war on terror threw us back 200 years. Now we're debating issues that were a matter of consensus among the Founders. Many of our conservative colleagues may find that historical reality compelling.

[confidance government]

Something we should all keep in mind is that if we permit our government to uphold and institutionalize "preventive detention" of any person, even if that person is not a citizen, we have started on a slippery slope where this will be applied to US citizens as well.

This is unconstitutional and should not be allowed to stand, regardless of the outcomes of the trials of these suspects. We have an obligation to resist this usurpation of our liberties, this miscarriage of justice. There is still time to persuade our government to change its course and to uphold the principle of justice.

[timhere]

If you can not prove someone has broken the law in a court of law using all due process considerations they should be set free. This argument that these are bad people does not hold water. Are they bad because we water boarded them a hundred times and they confessed to a crime? If the only way we know they are bad is through illegal means they must be released. Otherwise, the government of the United States is bad. We do not imprison murders because the cops say they are. It must be proven. If they have tainted evidence it is thrown out and the suspect released. There exists a price we pay for freedom. Why are we such cowards when it comes to paying that price. If a released prisoner from Gitmo goes on to kill Americans that is the price we pay for freedom. The same as the men in the trenches breathing mustard gas in World War One. You can have freedom or safety America. When the government can violate your freedom to protect you no freedom exists. The communists in the Soviet Union did exactly this. Every law they imposed, every free speaker they imprisoned or murdered, and every freedom they withdrew was for the safety of the people. I love my country and my freedoms and I will die for it. How about you?

[A Concerned Citizen]

HEAR HEAR!!

[jsgaetano]

Considering conservatives have been, for eight year, the biggest proponents of "preventative detention", in light of recent events I see nothing wrong with rounding up all these conservative "potential terrorists", and detaining them until such time as there are no longer attacks on America by the far right.

[A Concerned Citizen]

During the Second World War "Persons of Interest", namely those of Japanese descent were held in internment camps for no other reason to make sure that there were no spies on the lose. The government at the time understood that they were imprisoning the innocent along with the guilty, but in the interest of national security the preventative detention continued. This was wrong then and it is still wrong today. As it stated in the article, it is better that 100 guilty men go free than 1 innocent man spend 1 hour in detention with out just cause. We seem to have forgotten this. "They, who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." These words were spoken by Benjamin Franklin over 200 years ago, and yet they ring even more true today than they did then. Of course today it might need a bit of an addition. "Those who can give up the essential liberty of others to obtain a little temporary safety deserve neither liberty nor safety." A Concerned Citizen.

[JGriffin]

The comparison of Guantanamo detainees to Japanese-Americans during WWII is completely bogus.

Have you (or Mr. Buttar) done any research on the few remaining Gitmo detainees? If not, you should. These are seriously dangerous men with ties to persons who not only might attack the United States, but who already have.

[tracerhaha1]

Which means they should be tried in a court of law. If these people are as guilty as the government says they are and there is evidence to back it up, then convicting them shouldn't be a problem.

[A Concerned Citizen]

I am not referring to those who remain in custody I am talking about the whole repugnant concept of kidnapping someone on hearsay evidence, torturing them for information, and then setting them lose without so much as a lame "Sorry about that." to compensate them for the brutal violation of their civil liberties. If the founders could hear the argument that the natural rights of men who are "All created equal" being limited to only American citizens I believe they would weep at what had been done to their creation.

[jsgaetano]

If they are so obviously dangerous, how come the Bush administration doesn't even have one single terrorist conviction in a court?

[Gidster]

So you have dossiers on all of the remaining Gitmo detainees?
You have their crimes listed, and the proof that they committed them?

Because nobody else does.

That is merely regurgitated Limbaugh clap trap, not facts.

While I am sure that there are some very deserving men at Gitmo, I am also sure there are men we simply picked up on the battlefield, or took away from their villages with bags on their heads to be imprisoned and tortured with out trial, in direct violation of domestic and international law!

Now they cannot be let go for fear that our inhumane treatment of them have made them bitter and dangerous.....

It is a travesty from beginning to end! We gave up our principles to find a non existant link between Iraq and Al-Qaeda!

[Shahid Buttar - Huffpost Blogger]

Gidster has an especially interesting point: no one has a tight grip on the allegations confronting the detainees, because so much remains secret -- which is itself part of the problem.

In addition, consider the scale of the potential harms standing in tension. If we release individuals against whom we can't produce evidence, we run the risk of placing around 250 potential militants -- a relatively small number -- "back on the battlefield," while gaining immense credibility among the global billions for whose hearts & minds we struggle.

In contrast, expanding the preventive detention scheme beyond Guantanamo Bay helps security only in the narrow sense that some number of potential threats -- but, again, not very many (and fewer than the number of detainees, many of whom appear innocent of wrongdoing) -- will be neutralized. But we'll suffer monumental damage to our international reputation, not only because preventive detention will (1) represent a betrayal of our nation's principles that have long been the source of our greatest strength, (2) reinforce the international narrative promoted by violent extremists presenting America as at war with Islam, and (3) alienate and potentially radicalize victims of the detention scheme, but also because (4) President Obama will inherit international concerns about his administration's willingness to respect the rule of law -- which he could shed simply by restoring the rule of law.

[JGriffin]

Mr. Buttar, the rights and protections in our Constitution apply to U.S. citizens, not foreigners. You should have noted this little detail in your article.

Our detention policy may be un-American in spirit, but it's certainly not unconstitutional or illegal, and it's been deemed a necessary evil by both Bush and Obama.

[Kaviraj]

What a load of BS! Read the post above your own. All men are created EQUAL, but to you that counts only for US citizens? Have your head examined and your motives too.

[jsgaetano]

You obviously no nothing of the Constitution, OR U.S. Law. Our laws apply to anyone within our jurisdiction, regardless of their citizenship status.

This isn't the Roman Empire here. Citizenship is irrelevant regarding what rights you have under the law.

[Gidster]

The Geneva Convention of which we are a signatory, state that all enemy combatants are to be afforded POW status until their exact status can be determined by military commission.

It is illegal, it violates every convention and treaty we have signed!

If the roles were reversed and Iraq held a number of US citizens without charge, without trial, you would be screaming for war!

[TRUE BLUE AMERICAN]

Our laws are for Citizens of the Unitied States, the founding fathers are spinning in their graves over the liberal idea of dealing with thugs that want to harm the country they founded.

[jsgaetano]

You obviously know nothing of the Constitution, OR U.S. Law. Our laws apply to anyone within our jurisdiction, regardless of their citizenship status.

This isn't the Roman Empire here. Citizenship is irrelevant regarding what rights you have under the law.

[Gidster]

Co-sign!

Saying that it is OK to imprison and torture these men because they are not American is a specious argument!

[Shahid Buttar - Huffpost Blogger]

The Founding Fathers were themselves quite liberal -- "all men created equal," the robust system of checks & balances described by Madison in the Federalist No. 10, and representative democracy as an innovation to replace hereditary monarchy were hardly conservative aims. Moreover, they were not particularly concerned about security, having recently won a revolution against a tyrannical monarch.

More important to the Founders were the freedom and presumption of innocence that the Constitution ensures. Or could ensure, if We the People take seriously our responsibility to the legacy of popular constitutionalism we were given. What spins the Founders in their graves is not the constitutional demand for a fair and transparent process to judge detainees, but the tyrannical pretension that they pose so grave a threat to warrant casting aside our constitutional anchor.

[Gidster]

*Applause*

Nicely put!

[JoeLibertelli]

Is the US Constitution a fairweather friend?
What on Earth has happened to that basic principle of US criminal law which has long held that it is better to let a hundred guilty people go free than to imprison an innocent? The indefinite detention of those not proven guilty works injustice not only upon those falsely accused, but also greviously damages the rule of law, undermining faith in government and the Constitution.
Supporters of the rule of law and our constitutional system of all political stripes must oppose these policies. All people must have the right to hear the charges and evidence against them and have a fair and impartial trying of facts - EVEN IF following our laws results in some bad people obtaining their freedom and hurting innocent people. Our constitution and Bill of Rights must be honored, ESPECIALLY if it doesn't feel convenient or expedient to law or national security enforcement.

[jsgaetano]

When the going got rough, conservatives dropped the Constitution and the US Legal system away as a hinderance.

But then again, seeing conservatives behave anti-American is not one bit surprising.