What Pres. Obama Ought To Do With The Detainees.

To explain what Pres. Obama ought to do I have to give a little history first.

Bush invaded iraq illegally without a declaration of war from congress, which is the only body legally allowed to declare war.  Which is likely why they keep calling the war in iraq the “war on terror”, because they can’t call it an actual war for legal reasons.  Because it’s not a legal war but instead a “police action”, the prisoners taken by US forces are not prisoners of war and thus do not get protections under the geneva conventions such as a right to challenge their encarceration and the right to not oh I dunno, be tortured or beaten to death, as many detainees have been.  But that’s another blog.  Sticking to this one subject, bush passed the Military Comissions Act of 2006 which, among other things, invented the classification of “enemy combatant” and allowed “enemy combatant” status to be assigned to virtually anyone, stripping them of most of their civil rights, including the right to be marandized, right to have an attourney or representative present for interrogations, right to challenge your incarceration, and so on.

Now, getting us back to Obama, many want him to turn the people in gitmo over to civillian courts to be tried.  But the problem with that is if he does, then even the people in gitmo that are actually guilty, and I’m talking people who planned 9/11 here, even people who confessed before being tortured, would likely be set free.  Because the evidence against them was obtained without them being given the right to an attourney, without them being marandized in any accepted system of law, without any protections whatsoever, and as such would be inadmissible.  As would evidence against other people which were obtained by ill-gotten confessions.

So what should obama do?  He should turn them over to the civillian courts, knowing that many if not most of them will go free.

This is what we do when cops break the law and violate peoples’ rights.  We live with the consequences.  If a cop breaks your arm to get you to confess, it’s inadmissible in court.  It doesn’t matter if that confession leads to evidence that you were the second gunman on the grassy knoll, it’s inadmissible and you go free.  This is the way it has to be, because this is why cops don’t break suspects’ arms or dangle you off a tenth story balcony to gain a confession.  This is why criminals aren’t tortured in prison to gain information about other criminals, and if they were that information would not be admissible, no matter how many criminals it could put behind bars, or how safe it might make us.

Freedom is not safe, it is quite dangerous.  In a free society where the rights of all are protected, sometimes murderers and rapists go free, and they murder and rape more people.

But what is the alternative?  The alternative is to give our government the right to do horrible things, and mostly to innocent people merely suspected of wrongdoing.

There are a lot of things we could do to make ourselves safer.  If we put hidden cameras in peoples’ homes, I’m sure that would save a lot of lives and catch a lot of criminals in the act (say rapists and murderers, abusive spouses, child molesters and so on).  But do you want the government putting cameras in your house?  Do you want to live like that?

Freedom or security.  Pick one, because you can’t have both.

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About agnophilo

Nerd.
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110 Responses to What Pres. Obama Ought To Do With The Detainees.

  1. agnophilo says:

    @SladeTheGreyFox – Fair point.  Though I’m not convinced terrorism wasn’t just a red herring to steal oil from brown people.

  2. @agnophilo - Here are some of the ways in which I disagree with you:  1) assessment of risk on a purely statistical basis doesn’t work in a terrorist or war scenario, or frankly, even a natural disaster scenario.  Sure, I am 40 times more likely to die at the hands of a drunk driver according to current statistics.  But if 3 cells of terrorists attack 3 major cities with dirty bombs, and millions of people die, the statistics immediately change.  The number of people injured in a drunk driving accident:  1-10 or so.  The number of people potentially injured in a terror attack 3000-3000000.  On a per incident basis, it is much more likely I’ll be killed by a terrorist than by any individual drunk driver. 2) and even more important, the threat terrorism poses to me as an individual is not my only consideration.  I also care about my fellow citizens.  This is why we have laws against drunk driving.  This is why we attempt to stop terrorists.  Drunk drivers fall within the ambit of our state laws, generally speaking.  Terrorists do not.  Therefore we treat them differently.  3) 911 happened.  Prior to an attack, you might claim reasonably that there is a gross exaggeration of a terrorist threat which could be used to justify law-breaking.  But since there has, in fact, been an attack, an ACTUAL attack, involving the death of 3000 citizens, it is nonsensical to claim that a “gross exaggeration” of a terrorist threat forms the basis of law-breaking.  4) and “law-breaking” is also a matter of which law you apply.  And how you apply it.Do I agree many of the detainees would go free if tried under something approaching civilian law?  I don’t know.  I have no idea, and neither can you.  I think it would be ridiculous to cart a bunch of al-Queda members to Colorado and arraign them in state district court under regular criminal laws and try to force our constitution and our criminal statutes to apply to terrorist attacks against the nation as a whole.  I suppose you could try them in an international venue under international law for whatever crimes they have committed, individually, but I’m pretty sure international law doesn’t include an exclusionary rule and I’m pretty sure they don’t give a rat’s ass about “the fruit of the poisonous tree.”  Neither of which, by the way, are rights afforded under the Constitution if you are a strict constructionist anyway.I don’t know what the evidence is against the detainees.  I love the law, and I love our Constitution, and I know that its historical interpretations can’t be force-fit to this situation.  I imagine if you tried the detainees in American federal court and instructed the judges to apply Pakistani or Afghan law, since many of them are from those countries and/or committed their crimes in those countries, they might end up stoned to death, fair trial or not.The law is not a box, and it shouldn’t be made into one to force absurd results to advance a political position.

  3. Very intriguing post! I never thought of it like that before.  

  4. agnophilo says:

    @ordinarybutloud – “Here are some of the ways in which Idisagree with you:  1) assessment of risk on a purely statistical basisdoesn’t work in a terrorist or war scenario, or frankly, even a naturaldisaster scenario.”  I have no idea what that means.”Sure, I am 40 times more likely to die at the handsof a drunk driver according to current statistics.  But if 3 cells ofterrorists attack 3 major cities with dirty bombs, and millions ofpeople die, the statistics immediately change.”  And if more people get drunk and drive around the statistics change then too.  But lets stick to reality shall we?”The number of peopleinjured in a drunk driving accident:  1-10 or so.  The number of peoplepotentially injured in a terror attack 3000-3000000.”  On a per incidentbasis, it is much more likely I’ll be killed by a terrorist than by anyindividual drunk driver. “What I find ironic is that you poo poo me for comparing drunk drivers collectively to terrorists individually, then argue that my logic isn’t sound by supposing there were lots and lots of terrorist attacks.  Remember also that it wasn’t one person who planned and pulled off 9/11, it was dozens of people.  Yes terrorists can have more bang for their buck than drunk drivers but what does that matter in the argument I was making?  If there were two tornadoes that kill 5,000 people and one flood that kills 5,000 people, floods and tornadoes pose an equal chance of killing you and ought to be equally worrysome.  You cannot assume that the recent biggest terrorist attack in US history is going to be outdone a thousand times over.”2) and even more important, the threatterrorism poses to me as an individual is not my only consideration.  Ialso care about my fellow citizens.”  Yes, I addressed this.  Each and every one of your fellow citizens is far more likely to be killed by a drunk driver than a terrorist, as are each and every one of the people who read this blog.  I was putting it into the context of an individual perspective in a blog meant for many individuals, or in other words, many of my fellow citizens.”This is why we have laws againstdrunk driving.  This is why we attempt to stop terrorists.”  Are you suggesting I don’t have concern for my fellow citizens?”Drunkdrivers fall within the ambit of our state laws, generally speaking. Terrorists do not.  Therefore we treat them differently.”  They do if that’s where the attack occurred, that is the jurisdiction of the crime.  I don’t know how this changes if they’re not US citizens.”3) 911happened.  Prior to an attack, you might claim reasonably that there isa gross exaggeration of a terrorist threat which could be used tojustify law-breaking.  But since there has, in fact, been an attack, anACTUAL attack, involving the death of 3000 citizens, it is nonsensicalto claim that a “gross exaggeration” of a terrorist threat forms thebasis of law-breaking.”  I’m not arguing that the threat of terrorism had been grossly exaggerated pre-9/11, I’m saying it has been post-9/11.  If 3,000 people died every year from terrorist attacks you’d still be 6 times as likely to be killed by a drunk driver as by a terrorist and 20 times more people would die from alzheimers every year.  Terrorism is a problem and a threat, but so are a lot of things.  We the citizens shouldn’t be living in mortal terror that we’ll be killed by terrorists, nor should we excuse law-breaking because we’ve been bullied into it.”4) and “law-breaking” is also a matter of whichlaw you apply.  And how you apply it.”So you’re saying no laws were broken?  The geneva conventions, the constitution, waterboarding being illegal for over a century, invading another country with no declaration of war, all of it perfectly within the bounds of the law?”Do I agree many of thedetainees would go free if tried under something approaching civilianlaw?  I don’t know.  I have no idea, and neither can you.”  Sure you can.”I think itwould be ridiculous to cart a bunch of al-Queda members to Colorado andarraign them in state district court under regular criminal laws andtry to force our constitution and our criminal statutes to apply toterrorist attacks against the nation as a whole.”  If someone comitted a crime in america they’re tried by american courts.”I suppose you couldtry them in an international venue under international law for whatevercrimes they have committed, individually, but I’m pretty sureinternational law doesn’t include an exclusionary rule and I’m prettysure they don’t give a rat’s ass about “the fruit of the poisonoustree.”  Neither of which, by the way, are rights afforded under theConstitution if you are a strict constructionist anyway.”The right not to be tortured into confessing is held in any legitimate trial.”I don’t knowwhat the evidence is against the detainees.  I love the law, and I loveour Constitution, and I know that its historical interpretations can’tbe force-fit to this situation.  I imagine if you tried the detaineesin American federal court and instructed the judges to apply Pakistanior Afghan law, since many of them are from those countries and/orcommitted their crimes in those countries, they might end up stoned todeath, fair trial or not.”I’m no lawyer, but I know that judges are bound by our laws, they cannot sentence someone to be stoned to death no matter who they are or what their nationality.  And I don’t think our judges try people by other country’s laws…”The law is not a box, and it shouldn’t be made into one to force absurd results to advance a political position.”Exactly what political position am I advancing?

  5. “I have no idea what this means.”It means you’re comparing apples (single incident crimes committed by individuals) to oranges (attacks on a nation or large group of civilians by small numbers of quasi-military groups).  It’s a bad comparison and no amount of defending it is going to make it better.  I’m not supposing there are lots and lots of terrorist attacks.  I’m pointing out that on a *per incident* basis, one terrorist attack kills a TON of people, while one car accident kills a very small number of people, if any.  Putting aside issues of intent, which are apparently irrelevant in this analysis.  I’m also not assuming the biggest attack in US history is going to be outdone a thousand times over.  I’m assuming it is the *intent of terrorists* to outdo it a thousand times over, which is a fact.”Are you suggesting I don’t have concern for my fellow citizens?”No.  I know nothing about you personally.  I’m addressing your arguments.  For me they are two separate things.  I’m suggesting that as we prosecute drunk drivers, so must we neutralize terrorists.”I don’t know how this changes if they’re not US citizens.”The prosecution of the state law is the same.  Separate and apart from the criminal trial, they are subject to removal and/or exclusion.”I’m saying [the threat of terrorism] has been [grossly exaggerated] since 911.”That’s what is so amusing, and illogical.  Acts of terror are not like lightning strikes.  The fact that we had one on 911 does not make it less likely we will have one in the future.  Exactly the contrary, as a matter of fact.  The threat of terrorism has not been grossly exaggerated.  It is an actual, factual threat.  Terrorists strike westerners all over the world and have, in fact, struck here, in America.  They wish to do so again.  They plan to do so again.  They advertise their willingness and desire to do so.  How can the threat be grossly exaggerated??Re: the law:  this is just such a huge and complicated topic that to address it in someone’s comment box feels slightly ludicrous, despite the fact that I type like the wind.  But briefly:  you, yourself, said the Geneva Conventions don’t apply.  The Constitution of the US protects US citizens and under some, limited circumstances, not including “enemy combatants,” non-citizens.  I have neither the time nor the inclination to get into a whole thing re: the invasion of Iraq in the first place, but I thought we were talking about detainees, not Iraq?  This statement is simplistic and not always true: “if someone committed a crime in America they’re tried by American courts,” and even if it were true, many crimes committed by the detainees were not committed here, and even if they were, neither state nor federal criminal law necessarily governs a trial should they have one.  ”The right not to be tortured into confessing is held in any legitimate trial” is a value judgment and certainly isn’t the law across the world.  My point with the stoning is, why do you think a citizen of another country should be tried according to our laws and not according to the laws of their own country?  Or according to international standards?You’re advancing a position about what Obama should do with the detainees because you have a political position re: how Bush handled them and what laws you think he bent or broke.  

  6. Ikwa says:

    @Sgt_Pepper13 – yep I agree with you.PLUSAnd If we can’t trust our own system then what are we fighting FOR?Life, liberty, truth, and Justice is only for Americans? Other wise you have no human right? That is sick too. Why are we trying to”Liberate” Iraq then?What about human rights? Are they human? yes should they have rights? I think so. Give them Due process that we believe in to be fair and equal under our own standards because that is a price we have to pay for being WRONG in the first place! It is call consequences of bad actions!But most Americans think that they should be exempt because they are American and that is sad and against all that we believe in to be true. HUH life is full of choices and consequences. We are not exempt.Sorry this happened in the first place but we have far worse people in our prison system now and to think we can’t trust that system to protect us. SAD real sad.

  7. agnophilo says:

    @ordinarybutloud – “Itmeans you’re comparing apples (single incident crimes committed byindividuals) to oranges (attacks on a nation or large group ofcivilians by small numbers of quasi-military groups).  It’s a badcomparison and no amount of defending it is going to make it better.”  I’m not saying they are identical, I am comparing them in one sense and one sense only, the threat they pose to the individual.  If suicide bombers killed 1,000 people a year and hijackers killed 100 people a year, suicide bombers would pose less of a threat to you and to society regardless of how many died in each instance.  What you are saying is that one terrorist poses more of a threat than one drunk driver.  I agree.  There happen to be many thousands more drunk drivers than terrorists though.  Would you say that terrorism posed the same threat if there were five thousand terrorist cells in the US next year?  Because each terrorist still poses the same threat individually, so I guess terrorism would be just as much a threat to us, right?  The threat wouldn’t be greater if that were the case because we can’t gauge these things except in terms of individual offenders.  That is essentially your argument.”I’m not supposing there are lots and lots of terrorist attacks.”  You gave a hypothetical wherein there were multiple simultaneous attacks in order to argue against gauging terrorism and drunk drivers as a threat collectively.”I’mpointing out that on a *per incident* basis, one terrorist attack killsa TON of people, while one car accident kills a very small number ofpeople, if any.”  Yes, and you might have a point if there were the same number of drunk drivers and terrorists in america, but there aren’t so you don’t.”Putting aside issues of intent, which are apparentlyirrelevant in this analysis.  I’m also not assuming the biggest attackin US history is going to be outdone a thousand times over.  I’massuming it is the *intent of terrorists* to outdo it a thousand timesover, which is a fact.”You just said “Putting aside issues of intent… I’m assuming it is the intent of the terrorists to outdo it a thousand times over…”  Wha?  Assuming these were meant as separate thoughts, your hypothetical assumed a body count of 3,000,000 which is a thousand times greater than the largest terrorist attack in US history, your hypothetical assumed the largest attack in US history would be outdone a thousand times over.  And I don’t care if it’s their intent, it was their intent to attack the white house and they were stopped.  The most successful terrorist attack in US history was only 66% successful and you’re talking about one that’s 100,000% as effective.”Are you suggesting I don’t have concernfor my fellow citizens?”No.  I know nothing about you personally.  I’maddressing your arguments.  For me they are two separate things.  I’msuggesting that as we prosecute drunk drivers, so must we neutralizeterrorists.”I think we ought to do both as well.  I just think we ought to follow the law while we’re doing it.”Theprosecution of the state law is the same.  Separate and apart from thecriminal trial, they are subject to removal and/or exclusion.”This is gibberish to me.  Maybe it’s because I’m tired.”I’msaying [the threat of terrorism] has been [grossly exaggerated] since911.”That’s what is so amusing, and illogical.  Acts of terror are notlike lightning strikes.  The fact that we had one on 911 does not makeit less likely we will have one in the future.  Exactly the contrary,as a matter of fact.  The threat of terrorism has not been grosslyexaggerated.  It is an actual, factual threat.  Terrorists strikewesterners all over the world and have, in fact, struck here, inAmerica.  They wish to do so again.  They plan to do so again.  Theyadvertise their willingness and desire to do so.  How can the threat begrossly exaggerated??”I think the problem is you don’t know what “exaggerated” means.  You seem to think exaggerated means fabricated.  Saying a threat is fabricated suggests it isn’t real, saying it is exaggerated suggests it is made to seem more dire and important than it actually is.”Re: the law:  this is just such a huge andcomplicated topic that to address it in someone’s comment box feelsslightly ludicrous, despite the fact that I type like the wind.  Butbriefly:  you, yourself, said the Geneva Conventions don’t apply.  TheConstitution of the US protects US citizens and under some, limitedcircumstances, not including “enemy combatants,” non-citizens.  I haveneither the time nor the inclination to get into a whole thing re: theinvasion of Iraq in the first place, but I thought we were talkingabout detainees, not Iraq?  This statement is simplistic and not alwaystrue: “if someone committed a crime in America they’re tried byAmerican courts,” and even if it were true, many crimes committed bythe detainees were not committed here, and even if they were, neitherstate nor federal criminal law necessarily governs a trial should theyhave one.  “The right not to be tortured into confessing is held in anylegitimate trial” is a value judgment and certainly isn’t the lawacross the world.”  Thus the qualifier “legitimate”.”My point with the stoning is, why do you think acitizen of another country should be tried according to our laws andnot according to the laws of their own country?”  Well I don’t think we ought to try someone according to the laws of another country nor do I think our judges who are versed in our legal system would be able to try someone according to another country’s legal system competently, but the point I was making is that a judge cannot sentence someone to something that is illegal according to the constitution because they, the judge, are bound by the constitution.  They cannot sentence a rapist to be raped or a murderer to be stabbed to death, because that is illegal to do to anyone in america.”Or according tointernational standards?”Possibly, though I don’t know what system there is in place for that, and I think we’d be seen as kind of pathetic if we couldn’t deal with our own prisoners, so I doubt it will happen.”You’re advancing a position about what Obamashould do with the detainees because you have a political position re:how Bush handled them and what laws you think he bent or broke.”No actually my point is that the inflated threat terrorists supposedly pose is being used as a justification for any number of atrocities. Maybe this will explain what I’m talking about later, it’s an account of a conversation between Hermann Goering (nazi war criminal) and an allied intelligence officer in his cell during the neuremburg trials:We got around to the subject of war again and I said that, contrary to his attitude, I did not think that the common people are very thankful for leaders who bring them war and destruction.”Why, of course, the people don’t want war,” Goering shrugged. “Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece. Naturally, the common people don’t want war; neither in Russia nor in England nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship.””There is one difference,” I pointed out. “In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare wars.””Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.”

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