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Sunday, May 31, 2009

Obama's Department of Pre-Crime

Obama's Department of Pre-Crime
Image © Austin Cline
Click for full-sized Image

The Obama presidency has been filled with disappointments already, but the biggest and most dramatic may be his reversal on basic questions of morality and law. Most recently, this has involved his proposal to detain people indefinitely on the suspicion that they may pose some sort of "national security" threat but without any trial before an impartial judge or jury. President Bush was already trying to do this, but Barack Obama is taking the entire situation a couple of steps further along by institutionalizing it.

There are, admittedly, people currently in U.S. custody who can't be prosecuted for past crimes because the Bush administration made such a mess of things — detaining them without counsel or trial, torturing them, and so forth. Under a just system of laws, they would have to be released even if they are a likely threat, but Barack Obama doesn't believe in the principle of law enough to do that. Instead, he intends to construct a "system" or "legal regime" in which preventative detention becomes a standard for people who can't be tried but who are suspected of being a threat some time in the future — in effect, a "legal regime" of "precrime" where people are imprisoned for crimes they haven't committed yet.

Obama refuses to call this "preventative detention" even though that's clearly what this is, which suggests that he knows how immoral his proposal is and how it would be received if he labeled it honestly. What's more, his use of the term "legal regime" demonstrates that he knows his proposal lies outside the current system of courts, the current legal system, and even outside the system of military courts. So he knows that he is proposing the creation of an entirely new system which can't be held to any of the legal standards and restrictions which we are currently used to.

There are no upper limits being proposed for how long the United States can detain people without criminal charges, without trial, and without judicial oversight. This proposed system isn't just being limited to a few hardcore terrorists currently in American custody and it isn't even being limited to non-citizens. So, just as under Bush, the possibility is left open for American citizens to be detained by the government and kept imprisoned indefinitely without charges or trial.

It's not legitimate to say that we'll "only have trials if the defendant won't win," which is basically what Obama's proposal amounts to: people who will win because of how they have been treated will just be kept in jail without being put on trial. The principle of the rule of law isn't one you can uphold just a little bit and only when it's convenient — holding to principles "a little bit" ultimately means that you have little in the way of principles. Being a principled person means that you hold to your principles even when they lead to inconvenient or distasteful consequences.

To add insult to injury, Barack Obama made these proposals at the same time he admitted that the Bush administration made such a mess of things and condemned their handling of detainees. It appears that he hoped he could get away with institutionalizing Bush's mess if he condemned it at the same time, as if people would only notice the criticisms which they agreed with but wouldn't notice the ways in which Obama is trying to make that mess even worse. George W. Bush created an American Gulag system but left it an ad hoc system with little structure; Obama wants to systematize it and make it permanent, giving it a facade of legitimacy which it doesn't deserve.

Will Barack Obama get away with this attempt to destroy the rule of law? It's very possible because there are far too many people willing to give him the benefit of the doubt simply because they like him personally — they think that it's OK to trust him with unconstitutional powers that they wouldn't have trusted Bush with. Justice Louis D. Brandeis's wrote about just this sort of problem in his 1928 dissent Olmstead v. United States: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Would it be distasteful and unpopular if some of people currently detained by the government were acquitted in a trial and had to be let go? Absolutely. Should they be put on trial anyway? Probably — it might be the only way to ensure that all the details of their illegal detention and treatment come out. However unpopular such a legal outcome might be, the blame would lie squarely with all those in the Bush administration who made a successful trial impossible. If a murderer goes free because of police misconduct, the blame falls with the police and not the judge who follows the law or the legal system which protects us all.


  1. Austin, you don't seem to understand.

    "Probably — it might be the only way to ensure that all the details of their illegal detention and treatment come out. However unpopular such a legal outcome might be, the blame would lie squarely with all those in the Bush administration who made a successful trial impossible."NOBODY in "official Washington, Puke or Dim, wants ANY of that to happen. They will ALL, in fact, move heaven and earth to prevent it. They have told us, over and over, in a variety of ways, that NOTHING like that is EVER going to occur.

    As "thePrez" says: "We must look forward!" And when he says 'we must restore the rule of law,' he's not talking about laws that were broken, he's talking about not breaking laws anymore...well, just a little more, but no gig deal right?

  2. I'm a flaming liberalcommiehippieislamoscum just like you Comrade Klinski, and I abhor the notion of preventive detention. On the other hand, imagine the grenades waiting to be tossed the minute the first Muslim President releases some oily brown people because they have no case. There is no bobblehead persuasive enough to change the story from Hussein the Traitor to Chimpy the Braindead as the culprit.
    Somebody in the current WH should be able to figure it out. It should be done, but probably won't.

  3. It you frame this in its proper terms, it is easy to understand.

    If they can't be tried and they can't be released, we should just take them out, put them up against a wall, and shoot them.

    Too cruel? Too barbaric? Too much like the Nazis?

    What do you call life imprisonment without charge or hope of release? Both are a death sentence. So we might as well shoot them.

    But nobody will argue to execute people who can't be tried or released. Because that would somehow be a bridge too far.

    I really wish someone would ask Obama this question - at a press conference or public meeting:

    Mr. President, why don't we just shoot the detainees we can't try or release? It would save a lot of trouble. Because I don't see how shooting them is any worse, morally or legally, than locking them away in a dungeon until they rot.

  4. Look, people, we have pre-emptive strikes. What's so funny about peace, love, and preventive dentention?

    Who knows what somebody maybe might do?

    If we could only rid ourselves of the future, then nothing bad could ever happen. Really.

  5. Anonymous11:34 AM

    Would it kill you to actually link to a source once in awhile? I’m not necessarily doubting your explanation, but it would be nice to be able to read up on the subject and formulate my own opinions. Obviously, I can google it myself; but if you want a serious discussion about these issues, it would help if you would cite actual sources for your accusations.

    Just a thought.

  6. You said, "Would it be distasteful and unpopular if some of people currently detained by the government were acquitted in a trial and had to be let go? Absolutely. Should they be put on trial anyway? Probably — it might be the only way to ensure that all the details of their illegal detention and treatment come out."

    Unpopular? You mean, according to the wingnuts at Fox News "unpopular"? Or perhaps you mean fellow constitutional law professors, peers of President Obama, speaking out against indefinite detention? Or the question actually being decided in judicial proceedings of the Supreme Court, "unpopular" enough to go beyond complaint to actual judicial opinion?

    Well, whatever President Obama does, on practically any subject, there's a shrill disagreeable contradiction to what he does from the Usual Suspects at Fox News. Maybe that'll be enough for all 3 branches of the Federal government to throw up their hands and say, "OK, we'll do it your way".

    Which will result in even louder screeches of dismay...Not In My Backyard! (NIMBies, remember them? they're already screeching, and release of detainees hasn't even happened).

    So, I'd like to see some sensible solutions to the problem from all you folks so willing to criticize. Not just your noble principled objections to this attempt to deal with Problem #539 left over from the Bushies -- some substantive universally acceptable solution.

    C'mon. Let's see some answers from you.

  7. ????? @ 2:08PM,
    I couldn't have said it better myself!

  8. Obama is more of a chess player, preparing now for several moves to be made later, perhaps much later.

    What I see is that he is forcing the actual act of preemptive detention to be taken on as a constitutional law issue by the other two branches of our government to be formally ruled on as law and not merely as a matter of policy.

    He was a constitutional law professor. He knows what the law says. But there has to be a process that removes all of what the Bush administration has done from the realm of policy. It is the political policy argument that needs to have its legs cut out from under it. Forcing the issue to be ruled on in the Supreme Court is how this is to be done.

    He has taken the first step on the road that puts this in front of The Supreme Court.

    That's the way I see it. It's a long-term outlook, though. Not for those with a short attention span.

  9. Aaaais gots lots of faith in our Supremes. Lets see, John Roberts who has never sided with an underdog, Sam Alito, Good ole boy and arrogant bastard Scalia, court pornographer Clarence pubic hair Thomas, ans last but not least Kennedy. The other four get to vote it just doesn't mean anything.

  10. Think long term. This isn't going to get to The Court this year or next, or even next. But the pragmatic says that the very issue of detention without due process is unconstitutional. Once the issue is officially pursued, it has no other eventual destination. But can we afford to continue to have this kind of detention considered something the executive branch can order by fiat? The Bushes have already demonstrated that power will be grabbed when there is ambiguity in the law.

    If the Supremes take the position that a president can order whatever he/she wants, then they sign the order that they themselves are inconsequential to a three-way balance of power in favor of the Unitary Executive. I'm not so ready to believe that they are so short sighted to eliminate their own power so easily.

  11. I hope you are right jcricket. I am too much of an ideologue to play such deep gambits. It's why I gave up chess for Whack-a-mole.

    Going to SCOTUS as it is now is a gamble I'd avoid if I were BHO.

  12. In theory, one could bring a mallet to a chess match and show the sumbitch who checkmated you just who the real winner is. Call it 'Whack a Pawn' or somesuch.

    I would like to add: I am always interested in playing "what's the angle here?" For Cheney/Bush I wanted to understand why use torture when torture has a notorious history of providing false confessions...not to be too Spocky, but the logic of it suggests that false confessions were the goal. With Obama and "legal regime" et al I don't yet see a logical reason to suspect that there are base power motives behind the political maneuverings. He is tied to the banks, but they practice usury and not torture.

    I need mo' better information. And yes, links would help, if only to contextualize the writer's assertions.


  13. Comrade Clineskibergdorfman:

    What exactly is it that you want? You keep pissing and moaning about what isn't being done while all sorts of "good news" is out there. Hey, the surgestimulus is working just like intended.

  14. Sorry, I meant the stimusurge. I get my mixed metaphors mixed up sometimes.


We'll try dumping haloscan and see how it works.