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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Sunday, June 25, 2006

NYT Entry: "A Threat That Belongs Behind Bars"

And Also: The Braves ended (barely) their ten game losing streak by beating Tampa Bay (better record) in extras, though they lost two pitchers in the battle (including Smoltz). They lost the next day vs. a TB spot starter, continuing their remarkable descent to the cellar. It's almost a shame ... also, they have had a sort of movie horror monster quality that makes one wonder if they truly are dead. The Mets are not playing like a stupid horny teenager these days, though the other teams in the NL East (Marlins excepted, for now) basically are. Heck, almost the whole NL is. [The Braves won today, and thus the series. Watch out!]

Eric Posner has an editorial in the NYT today entitled "A Threat That Belongs Behind Bars," which focuses upon this point:
Critics argue that if the United States cannot prove before a court of law that detainees at Guantanamo Bay have committed a crime, then they should be released. This argument rests on the principle that people should be punished only for committing a crime.

The emotional appeal of this notion is undeniable, and the Bush administration has met critics partway by creating military commissions that will try some detainees for war crimes while denying them the full protections of due process available to criminal defendants. But the critics' argument rests on a half-truth, and as we rethink the wisdom of Guantanamo Bay, we should be sure to understand the complicated reality it conceals.

The whole effort, from this beginning, is as tiresome as it is troubling. I doubt that one is supposed to consider the "emotional appeal" to be a totally positive development, the suggestion being that a reasoned look at the problem will show "the complicated reality it conceals." So, we are set up for the fall. But, we are also set up for "half-truth" as well given this misleading opening. Put aside that the Bush administration "met critics partway" (apt phrasing) under distress. My other concern is that the paragraph ignores that the detainees are not even getting the "full protections" generally supplied to military commissions. This is a big part of what Hamdan is all about.

The editorial goes along similarar path the rest of the way. The core argument is this:
Detention sounds like a punishment, but it is not always considered one by the law. The courts distinguish between civil detention on the one hand and criminal incarceration on the other. A person who commits a crime may be incarcerated after a criminal trial in which he receives the full package of due process protections: a lawyer, a jury, an independent judge and so forth. A person who is merely dangerous cannot be criminally punished for being dangerous; however, he can be detained, and he is not always entitled to the expansive procedural protections granted to the accused criminal.

And, various examples are given, such as the mentally ill. Put aside that the mentally ill also receives a good "package of due process protections" denied to various detainees, including freedom from maltreatment, timely and consistent providing of lawyers, and clear rights to access to civilian courts. Again, warning ... bullshit alert!!! Oh, how I despise such specious reasoning. We also can note that the mentally ill are not treated the way these detainees are treated ... that is, as not only dangerous, but fully responsible for their actions, therefore worthy of moral approbation and perhaps even harsh punishment. Thus, bad example.
Dangerous undocumented aliens can also be detained. An undocumented alien who commits a serious crime receives a regular criminal trial, but after he has served his time, he is supposed to be deported. Sometimes the home country will not accept him, in which case immigration law authorizes the American government to detain him indefinitely. ... Again, the detainee is entitled to a civil hearing only, and thus does not benefit from a jury or other criminal trial protections.

Again, this is pathetic. First, he mixes in actual criminals, who have been given full hearings -- the very point of controversy -- into the mix. Second, he mixes in those with at least civil hearings, hearings again (though in various cases problematic) more than what are being offered for Gitmo people. Third, we are talking about people taken up from our soil, not the case in Gitmo. Finally, even in the limited area of those held (again after hearings spelled out by law) to be deportable but in which their home country won't take them, the editorial admits the Supreme Court limited the government's discretion. But, hey, possibly, a more narrow law would allow them to be held "indefinitely." Do not fall off that limb ... tad narrow there.
Throughout American history, states and the federal government have criminalized speech that advocates the violent overthrow of the United States government and other subversive activities. These laws, which long survived judicial scrutiny, authorized criminal punishment of people who were dangerous but hadn't actually caused harm.

Laws that consistently targeted what later (and often at the time) was deemed lawful speech, eventually (as the editorial sadly admits -- the times have changed, we need less freedom) by Supreme Court precedent. What a sad acceptance of years of oppression. Posner again uses the sadly predictable mixture of the wheat and the chaff by tossing in the detention of enemy aliens during WWII (detention clearly excessive, but again, concerning those taken from our soil, not oversea lands) and "hundreds of thousands of enemy soldiers." Well, sure -- same thing, right? Likewise, "enemy soldiers" are not really the same thing as "people handed over via bounties" (my phrase) and so forth.
Finally, even when deciding the length of ordinary criminal sentences, judges often take account not just of guilt but of a defendant's dangerousness. A sentence, in reflecting dangerousness, may be longer than is justified by the defendant's guilt. ... The half-truth that one can be punished only for committing a crime needs to be filled out with the larger truth that the government may detain dangerous people in order to protect the public.

His final straw is to consider the issue of aggravating circumstances and such. The fact he has to deal with a subset that "often" occurs is a bit telling in itself, but overall, the point is that these people are "criminals." The "dangerousness" factor often tends to be tied to the crime, since it tends to hand in hand with guilt. But, yes, there is a sort of "civil" quality to sentencing. Now, of course, we are talking about "criminals" here, criminals with full-fledged constitutional rights. So, again, a different sort of animal.
The question of whether to close Guantanamo is a question about whether suspected members of Al Qaeda are as dangerous as people made violence-prone by mental illness, enemy soldiers during wartime, undocumented aliens who have committed serious crimes, recidivist violent criminals and traditional subversives during times of emergency.

If they are, the United States government can, without offending American legal traditions, lock up suspected Qaeda members without the protections afforded by a full- blown criminal trial. Whether doing so is wise policy depends on the extent to which Al Qaeda continues to pose a threat to American security, the extent to which traditional criminal law protections hinder necessary security measures, the moral harm that occurs when the government erroneously detains people who are harmless, and the diplomatic constraints imposed by allies. It does not depend on an appeal to general principles.

Posner set up a strawman argument that critics are saying that only criminally liability is involved in detainment. I really do not know of too many who are saying this, if any. His kitchen sink approach of mixing a bunch of only weakly connected examples, examples that can and were (rightly) criticized in various ways on their own leaves something to be desired. And, the general argument is not for "a full-blown criminal trial" for those in Gitmo, just various protections understood to be required by international law and the usual rules of war ... if "war" is the right word to use. Thus, Hamdan defendants in part oppose allegations of "conspiracy."

But, hey, the "moral harm" discussed here -- clearly as a soft concern -- is on the money. I would even say that it works on its own, helpful given the prevalencence of so much specious reasoning out there.