CONNECTING THE DISCONNECT
Not everyone held in Gitmo is a terrorist...just as not all those held in US prisons are guilty...hence the success of the Innocence Project.
This comment popped up in a thread on another site and it brings to mind a major disconnect in the debate on torture and indefinite or preventive detention. Something is missing in the way we think about these issues. We won't seriously engage the Constitution and rule of law until we view terrorist suspects as POTENTIALLY OURSELVES.
(More below the fold)
Until then, as a general population, it's as if we're running parallel alongside the law and leaving it to media entertainment to toss these issues around for a small minority audience but as a people we're largely not engaged and have little investment in the outcome. Yet the protections of the Bill of Rights and Geneva Conventions are designed for everyone including those who might be innocent. Mistaken identity/name mixups and people rounded up on false reports have already caused several detentions, some with torture (e.g., Al-Masri case and Mansur Ali case).
Every American, no matter how we feel about suspected extremist criminals, should assume we are the ones suspected as detention could happen to you or me at any moment by sheer mistake that can take months or years to correct -- if ever if there is no hearing.
IANAL but this seems to me one of the core reasons why preliminary hearings exist (with protections like habeas corpus and other aspects of due process), not for prosecution of the guilty but for protection of the innocent. By and large because of the absence of the simple key perspective that you or I might be suddenly dragged off the street and the presence of images of foreigners denoted as "terrorists" who look different from you and me and seem safely "other" and far away from us, the issues of torture and detention are not engaging the Constitution and rule of law on the popular or media front. They are being virtually ignored except for shock value of Abu Ghraib etc -- yet these are OUR OWN RIGHTS we are losing.
A commenter said >>Don't expect too much from people. It is in our genes. We care about us, our families and neighbors and even maybe fellow citizens. But terrorists in a foreign country? << This observation highlights our failure to connect these two states to see that our rights are only as effective and protective as they are for the "foreign terrorists" because "they" could be us and we could be "them" at any given moment. I don't see why this is hard to understand. A mixup can happen easily with so much suspicion in the air around identities since 9-11, say, checking in at an airport or traveling abroad or registering for college or in a routine traffic stop. Knowing this, how can we be so cavalier about diminishing "their" rights knowing we will need the same rights so easily? Currently most suspects are foreigners held offshore but once Obama’s proposals are unleashed there is nothing to keep indefinite detention without hearing and preventive (pre-crime) detention from becoming domestic law of the land to "keep us safe" (as the rationale will be explained).</p>
Another commenter said something revealing of an attitude at large, especially toward bleeding heart liberals: >>These dogs want to kill you and you want to save them." << Others mentioned "compassion toward terrorists" pejoratively. I submit we don't want to "save them," we want to save our Constitutional rights FOR OURSELVES. Our compassion is for those of us (not them, US with no idea where "us" ends) who might be innocent and thus we have rights like habeas hearings to protect us. The key attitude is that "US" NEVER ENDS. It's no problem for us if the suspects are found innocent in due process. But why cut off our own rights to spite them by cutting off their due process?</p>
President Obama is striding into the split between "us vs. them" to expand executive power, as Bush did. A lot of Americans since 9-11 view suspected terrorist detainees with hatred and some think they deserve torture. They are already convicted in the public mind by being known as "terrorists." Many are indeed probably guilty -- BUT WHICH ONES? Without a hearing to determine reasonable cause for detention, mistaken identity cannot be proven or, on the other hand, evidence shown by the govt of criminal behavior warranting prosecution and detention. By not prosecuting the known crimes of Bush-Cheney, Obama is losing those protections for us. He is allowing Cheney-Bush crimes like torture to stand as "not-crimes" while he would round up suspects for "pre-crimes."
A finite number of extremist suspects cannot be tried because they have been tortured (or whatever reasons). Perceived injustice is a major reason terrorism arises in the first place. Why do we have to gut the Constitution to deal with a finite number of untriables? Why not just free them at the point they were detained (Afghanistan etc) or some other reasonably safe area and let the chips fall where they may and gain the political benefit from Muslims in their local communities who hated America for our injustice under Bush-Cheney? Justice is very emotional and I don't know why Obama doesn't play this angle. He could at least reduce extremist criminal violence in the bargain. Justice works. After all, justice is how we evolved into a democracy and crafted a Constitution in the first place. At our best American is an evolution of justice, with a few rough spots along the way we overcame. Don't tell me a Dem prez comes along and throws the whole thing into reverse.
So, when President Obama (or any of us) speaks of prolonged detention or preventive detention, the full phrasing should be (in our minds at least) "prolonged or preventive detention of you or me." That will change the tone and content of this debate -- fast.
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I was previously known as "wardlow" on this site and wrote a diary in 2007 asking, "Will next (Dem) Prez renounce Bush unitary executive and restore the Constitution?"
I was concerned about exactly what Pres. Obama is now doing, following suit with the Cheney-Bush national security/terror policy and making it worse by proposing ideas like indefinite detention and preventive/pre-crime detention (which Cheney-Bush never proposed although they DID them de facto) and having Congress install these policies into law. Obama seems to be allowing people like Hayden and Sunstein and other unitary presidentists to whisper sweet nothings in his ear. One of the few ways I can think of to change this direction is to change our attitude as described in this new diary above. In short, we would do well to understand that when we speak of rights of "terrorists" we speak of OUR OWN RIGHTS.