Feingold’s Opposition to Indefinite Detention
Man, I love Russ Feingold. Here’s the letter he sent Obama to lay out his opposition to the notion of indefinite detention. (h/t dday)
He perfectly explains why indefinite would be a dangerous precedent.
My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.
He leaves out just one thing here–the possibility that our own government will start rounding up Americans as terrorists and indefinitely detaining them. If animal rights activists can face prison for exercising their free speech under the Animal Enterprise Terrorist Act, after all, then it’s not a stretch to envison PETA members indefinitely detained.
Feingold also issues a clever warning when discussing his opposition to Obama’s suggested use of military commissions to try detainees: full transparency on the government’s files.
Like you, I voted against the Military Commissions Act of 2006. I agree with you with regard to that statute’s many flaws, but it is not clear to me that those flaws can be fixed, or that the other options in the current federal criminal justice and courts martial systems for bringing the detainees to justice are insufficient or unworkable. If Congress is to fully consider your proposal for military commissions, therefore, it will need access to the same information your administration is currently reviewing, including detailed, classified information on individual detainees and the extent to which other options are available. [my emphasis]
I suggested yesterday that Obama’s consideration of indefinite detention (and I’d say the same about military commissions) is an attempt to bury evidence of our own crimes. I’m guessing maybe Feingold agrees. He seems to be suggesting that Congress can only legislate new military commissions if the Administration shares the evidence–all the evidence–with all of Congress.
Ain’t gonna happen.
Obama’s not going to let congress see the evidence either? WTF? There’s just no way everything is going to be kept under wraps. Its going to be a drip drip drip that’s going to eat away at Obama.
When’s he going to grow a pair?
So far, he’s not demonstrating he shares our views about things that mean a lot to many of us (strongest defense of the Constitution, Rule of Law, etc.). So, if he did grow a pair I’m not sure he’d use his newly-found strength in helping achieve our goals. No offense intended–just sayin’.
Part of the drip drip drip is happening already because some of us know a fair amount about one or another specific case at GTMO, and we’re not going to let go.
Sometimes I feel guilty staying focused on the case that is local to me, Omar Khadr’s, given the hundreds of detainees who don’t have Western advocates working away for them. But then I think that it shouldn’t take so many such cases broken wide open (Binyam Mohamed, first in line) before Obama will have to face up to the continuing criminality of GTMO and other detention sites, and talk frankly to Americans about just how bad it was and continues to be.
I’m really bothered by the current meme about GTMO’s being a problem because it became a “symbol.” Horsefeathers. It may have become that too, but focusing there is just a way of minimizing the continuing daily illegality, sometimes the horror of all the detention sites.
Is it possible to stop the corporate media from going meta all the time? To rub their noses in the reality of twice-daily rough force-feedings?
Sorry. This gets me going. Blessings upon Russ Feingold.
It sure gets me going, too. There are certainly instances in “the media” of taking the moral and legal high ground and trying to elucidate the issue for readers/viewers. E.g., the May 16 Boston Globe editorial. And, while I have no tee vee service I do read about and view video clips from Maddow, Olbermann, Moyers, etc., and even the Daily Show, so all is not lost. At the same time, it is mind-boggling and frustrating that so much time and energy are spent trying to blow smoke, kick up sand or whatever in actually arguing whether, say, waterboarding is torture or enhanced interrogation techniques are torture, whether it’s ok to torture people who are really, really bad people and on and on. Too much is spent on entertaining the public than in guiding the public to and through sober, informed discussion. I will now step down off the soap box. Thnx.
http://www.boston.com/bostongl…..patriotic/
Sometime during the past 20? years, TV execs decided that “news” was a form of entertainment. They decided that people didn’t want too much serious news, so that you either had to alternate short news pieces with entertainment pieces (like Olbermann’s “Worst Persons” or Maddow’s “Cocktail Moment”), or you had to use a format like Colbert where the news and entertainment are inextricably mixed together.
Go back, if possible, and look at some of the old news shows when Walter Cronkite was anchor man at CBS, and compare that with today’s news formats.
TV news is tolerable during the week because we’ve got 1 hour Olbermann and Maddow shows to obsess about. The weekend, unfortunately, is a vast wasteland, except for CNN and some of the Sunday talking heads. CNN this weekend actually had some decent panels run by Anderson Cooper with people like Amanpoor, Nick whatsisname and some others with serious cred for on-the-ground reporting. (Of course, they also have Nancy Grace, but we won’t talk about her.)
Bob in HI
Wikipedia on Amusing Ourselves to Death: Public Discourse in the Age of Show Business (1985), a book by Neil Postman:
Yeah, well, that was not the reaction of most people to watching Walter Cronkite during his heyday as news anchor. During the Vietnam War, Ted Turner’s newly minted 24 hour/day news delivered a truckload of serious news to the American doorstep, and they didn’t try to dress it up with “Worst Person in the World” or “Cocktail Moments”.
Besides, do you watch Bill Moyers on Friday nights? Or did you watch Sam Ervin’s Senate Select Committee that was on the toobz so much back during Watergate? That was some serious news coverage.
TV is what we make it. If all that is wanted is bread and circuses for the masses, that’s what we’ll get.
Bob in HI
During the Vietnam War, Ted Turner’s newly minted 24 hour/day news
CNN started in 1980.
Oops. What was I thinking of?
Bob in HI
GHWB pushing Saddam out of Kuwait on CNN? Operation Desert Storm was their debut.
Oh, Bob, I don’t have to go back and look at old news shows. I remember: Cronkite announcing the death of JFK, Cronkite turning towards truth as the Vietnam War raged on, etc. But, as you indicated, that was before hot-shots in the “industry” decided to turn the news into the nooz. And we’re certainly the worse for it. Sigh.
I was thinking just yesterday about how I used to actually WATCH the “Evening News” every night — but of course that was at a time when Walter Cronkite & Dan Rather were the “hosts.”
It WAS different. There was no TiVo [and no internet], so you actually did have to schedule your time to sit down & watch it, and you felt uninformed if you missed.
Of course at that time it was also essential to one’s political education to read the Washington Post and NYT. This was, after all, the era of Vietnam and Watergate.
It was also, coincidentally or not, a time when Richard Nixon proposed preventive detention for all who were opposing his policies. This was strongly opposed by CBS, the WaPoo and NYT, and thus the American people.
How far we all have fallen.
Good post.
George Washington was a terrorist!!! …at least in the eyes of the British (who didn’t need a constitution because they had a divinely-chosen monarch). And they would detain without charge for as long as Providence wanted the evil doer detained.
This was one of the biggies in the constitution’s limits on government. In fact, it was spelled out far clearer than the right of an individual to keep an AK-47 under his bed.
Obama needs to stand up for constitutional principles instead of trying to rehabilitate the evil doers and dead-enders from BushCo.
Former Senior Interrogator in Iraq Dissects Cheney’s Lies and Distortions
Matthew Alexander
Led the interrogations that found Zarqawi; author of “How to Break a Terrorist”
Posted: May 24, 2009 10:48 AM
‘As a senior interrogator in Iraq (and a former criminal investigator), there was a lesson I learned that served me well: there’s more to be learned from what someone doesn’t say than from what they do say. Let me dissect former Vice President Dick Cheney’s speech on National Security using this model and my interrogation skills.
. . .
“Finally, the point that is most absent is that our greatest success in this conflict was achieved without torture or abuse. My interrogation team found Abu Musab Al Zarqawi, the former leader of Al Qaida in Iraq and murderer of tens of thousands. We did this using relationship-building approaches and non-coercive law enforcement techniques. “
http://www.huffingtonpost.com/…..07151.html
Top U.S. military officer pushes Guantanamo closing
Sun May 24, 2009 12:46pm EDT
By Will Dunham
‘”Well, the concern I’ve had about Guantanamo in these wars is it has been a symbol — and one which has been a recruiting symbol for those extremists and jihadists who would fight us. … That’s at the heart of the concern for Guantanamo’s continued existence,” Mullen said on ABC’s “This Week.”
. . .
“Obama said Guantanamo prisoners will be tried in U.S. courts and held in super-maximum-security U.S. prisons while others could be tried by in special military trials, but his speech on the issue left many questions unanswered.”
http://www.reuters.com/article…..me=topNews
I’ve said for some time I’d trade all the politicians in Washington for one statesman. Would someone from Wisconsin please stop by DC and pick up your politicians?
Boxturtle (It’s a great trade)
“love” Feingold too. The only disagreements/votes I strongly disagree with is his willingness to jump on board this type of warmongering legislation
He was part of the team to introduce this legislation
http://www.aipac.org/Publicati…..n/S908.pdf
Marcy, remember way back around 2006 when we were all trying to get bush out of Iraq?
I forget who it was but a journalist had said ”bush said he is going to make it impossible for the next president to leave Iraq”
we’ve forgotten that was acutally a plan, and that plan was the plan of the boyking
obama was played and the very worst thing for the ”get out of Iraq” movement was for a democrat to win
now that movement is entirely impotent
and here’s another question;
remember how it made us nuts reading about that “embasy” the size of the vatican?
why aren’t we nuts about that anymore?
oops, sorry, double post
Bottom line is Obama is Bush Lite.
Thanks go to Feingold, and hopefully many lawyers and others of prominence will continue to speak out against such an abomination.
If I had wanted to live in the USSR or Communist China, I would have moved there. These kinds of concepts should never even be in the conversations as a possibility in this country.
we’ve forgotten that was acutally a plan,
Perrris
if you think about the Bay of Pigs, Waco, Somalia, these were all disasters planned by exiting Republican Presidents foisted of onto incoming Democratic Presidents.
Its not just a plan its a Party Policy for the Republicans. They don’t give a damn about this country they just want to hurt whoever pushed them out of swine trough.
Feingold only mentions Guantanamo. What about Bagram? Do we really know with any certainty that they are not taking prisoners there from all over the region? What about Iraq? Are there any other secret prisons still operating? I don’t think we really know that. But new procedures being contemplated should also take those places into consideration.
Diego Garcia? And more than a few ships at sea?
+1 Exactly. When suspects are in our custody-whether it is on “American soil” or not-they deserve to have their case adjudicated as well as Joe Blow down the block (although, as we all know, you get the law you pay for…).
Why is extra-Constitutionality found acceptable by a supposed scholar on the Constitution? What has been happening in our law colleges in this country? It seems that there are forces now openly walking this land that want to do away with the Bill of Rights. That have little concern for individual justice or freedom. When both Democrats and Republicans sign on for this sort of lawless behaviour, to cover up crimes committed in the name of the United States, then, really, what is left of the Constitution?
Aye, now there is the root question, eh?
Who would be better qualified to get around the constitution better than a consitutional scholar?
I don’t get it either. Fucking MIND BOGGLING.
When I read Russ Feingold, I almost want to weep, because I know that his voice will be lost in the noise the usual suspects in the Senate – and the House – will make that will distort and distract from what they ought to be paying attention to; I can almost hear Lieberman’s whine and Lindsey Graham’s drawl. Ugh.
I don’t disagree that Obama faces a tough decision, but if he could just hew to the principles that got us this far, he’d realize it isn’t as tough as he’s making it, and he never would have suggested preventive and indefinite detention to being with.
It has been a long time frustration of mine that Feingold always gets drowned out or ignored. He is so seldom supported by his fellow Democrats in the Senate. I wanted him to run for President – but I realize now what I really wanted is just for him to be heard for a change.
I love Russ Feingold. Obama disappoints me more every day.
Hi zett! Feingold is someone I admire too. Very much.
Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.
That’s the part that kills. That there’ll be a permanent smearing over of this bright line at the heart of the legal system, with the blessing of both parties.
The more I look at Obama’s timing the Archives speech to Cheney’s wanktanker, the more I’m inclined to conclude he knew he could count on Cheney’s epistle to bloody torture to soften the debut of his own preventative detention category.
I agree and if I want to be truly paranoid, I would suggest they’re working together. Perhaps they were put into office by the same people (corps) just sayin’
Thank you Marcy! Feingold is a gem! His constituents must be VERY proud to have elected an honorable, intelligent, judicious, mature, articulate man to represent them in the United States Senate. Hey, what’s wrong with Texas? Can’t those people discern the difference between a John Kyl and a Russ Feingold? Also, what’s up with Kansas, Oklahoma, Alabama, Mississippi, Louisiana, Florida, Arizona, Kentucky, Tennessee, Georgia? Shall I go on?
(Disclosure: ianal :g )
Stare decisis has, over time caused legal precedent to overrule law and reason. The movement has been kind of like continental drift, but it is real and has serious consequences. The distinction between precedent and law (reason) is not small.
If the law were based on reason, it would mean that an argument which presents a logical flaw in an existing law can upset the law in any court, no matter how many cases (precedents) had been decided by that law. It would also mean that we could (as we used to do) refer to law going back to the Romans and earlier, when those laws showed logical consistency and applicability. Some time ago, the U.S. excluded the use of common law in the process of making legal determinations as a way of cutting off access to a large and established body of law that had been used for centuries and was based on reason, substituting precedent and ‘local’ law (U.S. based only) instead.
However, under the rule of precedent, it becomes increasingly difficult to overturn a bad law as the precedent decided by that law accumulates. Finally, you can arrive at the absurd situation of everyone agreeing that a law is bad, but you can’t have it thrown out in a court (below SCOTUS) because precedent supports that law. Only a new law can do that, and that has also become increasingly difficult as the political class becomes more and more corrupted by corporate influence and the privileged class. As noted in the first article cited above, almost no new legislation is ever subjected to a test of its constitutionality. Then, as it is applied, it develops a base of ‘precedent’ that makes it virtually impossible to get rid of.
This reasoning then filters into the common thinking, and now we have people (Senators even) arguing that if Obama upholds or expands on Bush’s bad policy,
Well, I call bullshit. The arguments for exclusive use of precedent in law are usually faulty, and so is the one currently being applied to presidential policy. Simply put, if Bush can bend the law and policy beyond recognition without reference to precedent, so can any other president throw out his decisions without reference to precedent, and ‘the people’ can knock down any such appeal to the previous policies. NB: I do not support Obama’s current direction, but it is not right to say that it binds the future to irrationality because it wasn’t opposed now. THAT is irrational.
Which gets us back to the discussion of torture and such. Wrong is wrong. Most of the time, it doesn’t actually require any previous experience with wrong to spot it. However, in today’s world, it requires balls to say that something is wrong in public. In the same way that torture is easily identified as such, and as such is wrong, the discussion of the fine points of government abuse (by any administration) is also wrong, for the following reason. You can’t get rid of wrong if you are diverted by a discussion of just how wrong it is and in exactly what way. Discussions of wrong which don’t lead fairly directly to meaningful corrections blunt the energy and suck up the time of people who want to get rid of wrongness. This is the smartest blog on the internet, bar none, and yet it seems to be focused primarily on definition and elucidation, with scant attention paid to effective action. You can’t correct voting fraud at the ballot box and you can’t fix systemic corruption from within a corrupt system. When corruption is endemic, there is no point in going after corrupt individuals. At that point, the ’system’ of governance as a vital relationship between the people and the leaders is dead. Plutocracy, autocracy, fascism, corporatism, Divine Royal rights, (U.S. “democracy”?), call it what you will, it is irrevocably a master-slave relationship and that is not governance, it is the handing out of instructions to the masses. Nothing can filter UP to the top.
The people/class in power have long since figured out how to stay there, by diverting justifiable anger and resistance into harmless (to them) pastimes, while allowing those engaged in them to feel they are “making a difference no matter how small”. These activities may feel good and may even look like they are leading somewhere, but the history of the world’s rulers says otherwise. They routinely win; we always lose in the end.
Now, a discussion that might have real effects would be about how to overwhelm the power structure (especially about how individuals can act largely alone to do so), and get beyond the appearance of “making a difference” to really making one. A main obstacle to such ideas is finally that people feel more comfortable doing what they know how to do than doing what is effective but unfamiliar (dangerous?). Perhaps the discussion needs to start with how to get people to evaluate how easily their own actions are currently being neutralized and thus rendered harmless to the real system.
As I said in another comment, context is everything. No awareness of context, no ability to assess potential impact. No impact, no change. No change, no hope. Feeling hopeless lately? Check your context and try again.
TA (the law is not the law)
Re emptywheel, you say it’s:
My response? Somebody’s got to stop and think! Before we cross roads! And look behind us at the roads crossed!
Carry on, EW!
I am NOT knocking EW. Quite the contrary. I try not to waste my time and if I didn’t already know that this was one the smartest groups in the ether, I wouldn’t bother making any suggestions at all. EW, you have collected an amazing group of thinkers around your blog and I imagine that you are justifiably pleased.
What I am saying is orthogonal to the usual discussions that occur here. I am saying that it is just possible this group, with their extremely well informed minds, might be able to figure out how to transform cutting insight into actual knives. That is looking before crossing the road.
So, just what is the context that will allow all of us to figure out how to proceed? For me, it is pretty damn clear that you can’t beat them at their own game and if you wanted to anyway, how would you be different from them? Can we list the approaches (in general terms) that are doomed to failure because they don’t take certain key factors into account (such as voting in rigged elections or trying to use the two-faced, one-party system)?
Then, does that list suggest approaches that at least might work? Or perhaps the list, commented upon with the usual astuteness found here, will give someone enough grist to have an Ah-ha moment they can share with the rest of us? Maybe the problem is trying to use any frame at all — without a frame, there is no picture, you’re just left staring at reality. However, as I think you know, TheraP, finding out about the frames one uses and then getting rid of them is probably the single most difficult task humans face, even more difficult than ending war and bringing truth and justice to all.
TA (I keep looking in the mirror and hoping to see nothing)
Exactly!
Now, I wonder why that is….
It’s EW’s site. And I bow to the “usual discussions”. That’s why most of us come here.
Kos is a good place if you’re looking for activism.
Now, if you please, back to the “usual discussions”. (I’ll comment on this no more.)
Whew! That’s certainly breath-taking. Dissent has been put into permanent lock-down, it seems. It still occurs, but is either ignored or receives anemic publication, which creates and reinforces the message that we are oh, so alone and, thus, ineffective. So, take us up a level, please.
Hmmm, if I read you correctly, you are agreeing that the current system has things tightly locked up.
Yes and no. One of the (false) ideas we have been sold, very thoroughly, is that the power of one isn’t referring to moi. Au contraire. That’s all there are — a whole bunch of 1111111s. One of my favorite epigrams is “Born alone, live alone, die alone.” However, this does NOT mean lonely and powerless. It means you have to start at home or you can’t go anywhere.
Your mention of another level shows that you already know that there is one. Tell us about it.
Hello? Hello? Don’t become a stranger. At least give some directions. Thnx.
Sorry, I went away for a while. There seems to be some contention about whether I should be raising these issues in this forum. While I do want to energize people, I don’t want to piss off a bunch of others in the process. Does anybody want to offer me some guidance?
TA [the law is just something we made up]
Click on the “Home” button up at the top of this page, which will take you to the FDL main page. Scroll down just a tad and you’ll see a box that lists the top 10 diaries on Oxdown. There is a tab right there which you should access: “Write a Diary”. You might want to check out dailykos also and see what their rules are for writing a dairy. Their address is: http://www.dailykos.com/ On the right-hand of the kos main page are several options, including “Contact Us”, so you might want to start there. Please pursue this–and advise us of your progress. Thnx.
“Your mention of another level shows that you already know that there is one. Tell us about it.”
I asked you first.
Seriously, it would be great if you’d post an article about this (more, pls) since the need for exploring this subject is keen and will surely engender considerable comment . I haven’t a clue about which blog(s) would be best. This site and a couple of others attract me like a magnet for the richness and expertise that I find. Otherwise, I just stumble and bumble around the internet seeking salient information and “answers.”
IANAL either, but Feingold is absolutely right about the effect of Congress ratifying and “legalizing” Obama’s proposal to institutionalize detention without trial. You’re right about the drifting away from justice effect of stare decisis, but the president and collection of federal judges we have now are the last people on earth who’re going to abandon the principle.
To your larger point: individuals acting largely alone cannot “overwhelm the power system”. They just can’t, exactly because it is a system.
The power of those not part of the economic and political elite is mainly in our numbers and our (potential) ability to withhold labor/money/consent for things to operate normally. That power is not truly useful unless and until a number of other conditions are met, and those conditions require active collaboration with others. The study of movements that accomplished something shows the same patterns again and again (the importance of a clear analysis, points of unity, accountable leadership, winnable campaigns against targets of opportunity, etc. etc. etc.)
I didn’t say it would be easy to (gulp) overthrow the system. But it’s not at all clear that it requires a group, or that a group could do it better than individuals acting alone. Groups are automatically subject to the foibles inherent in the current system, to the vanities and egoisims that get displayed and played out in modern politics. How do you propose getting rid of those pitfalls in your group, if you insist a group has to do it? I would like to point out that the power of the system as it exists does not arise because the powerful are violent, although they certainly are. It comes from your fear of violence. Or, your fear of disapproval. In other words, from fear of the consequences of action. Get rid of the fear and their power disappears. As has been pointed out before, they can’t lock us ALL up. Or maybe they already have done it, with fear.
And that’s why their group will probably beat the shit out of your group, because they have the weight of illegal (non-rational) law on their side, not to mention a lot of guns and stuff. As I keep saying, the law is NOT the law.
TA
Good for Feingold and ditto on zett’s comment on being able to have him heard. He is always so smart and so sensible, but he’s almost never the guy on the Sun morn shows. Who wants to watch Ben Nelson or Chuck Schumer AGAIN?
I wouldn’t necessarily have called Obama a constitutional scholar, though. An adjunct gig doesn’t make him into Chemerinsky.
Heh, he certainly ain’t no Chemerinsky.
We Should Call This What It Really Is — Paranoid Detention
The other labels concede the lie that this is “about them” (and their (threat”), rather than the truth that it is about us (and our fear).
Obama has adopted the core bushcheney/beltway paranoia — about how to treat “evildoers” on both sides of the permanent “war on terra.”
—
Yes! Exactly! Paranoid Detention.
from Kos
Poll
With respect to Senator Feingold and his call for hearings
Yes, I fully support them and commend Senator Feingold but we also need a Special Prosecutor to investigate and prosecute the Bush Administration.
73% 1688 votes
Yes, I fully support and commend Senator Feingold for showing leadership on these issues and for calling the hearings.
18% 414 votes
I’m so-so on this.
2% 57 votes
I do not have enough information to make up my mind.
3% 60 votes
No, we don’t need hearings; we should look forward not backward.
3% 61 votes
Hell no, I’m George W. or Dick Cheney and the last thing we need is Senator Feingold poking his nose into what we did.
1% 33 votes
| 2313 votes