Prolonged Detention? Preventive Detention?

**Oldgamer** · June 02, 2009, 04:41 PM

When I came across this, I was ... quite frankly ... shocked. I haven't heard this on any network, and I missed it from the New York Times, which I subscribe to. I won't comment further, I simply ask you to listen to the entire 8-minute piece.

The commentator is Rachel Maddow, from MSNBC.

**magickyleo101** · June 02, 2009, 06:49 PM

I'm fairly sure that everyone we're locking up is at least suspected of doing enough to convict them of attempted murder. (e.g. they wanted to do it, they took steps towards doing it, etc.). So the reason they're not being tried isn't necessarily because they've yet to commit a crime - the crime was completed when they started plotting with others, assembling bombs, observing locations or whatever else it is we're accusing them of.

Rather, the reason we're locking them up without trial is because we probably attained the evidence which would normally be used to try them in an improper manner. Under the American exclusionary rule, that evidence becomes inadmissible and can't used at trial. So we can't try them, regardless of how "factually" sound the evidence we have against them (hence, Obama's talk about the evidence being "tainted").

In fact, what makes the whole Rachel Madow critique such vapid nonsense is that her argument, if it were any good, would be an attack against the whole system of punishing people for attempted crimes. The whole point of attempt crimes is that we're going to punish for stuff that otherwise wouldn't be wrongful (since you haven't completed the target crime yet) because we don't want to have to sit around and wait for you to complete the wrongful act you're planning.

So the problem's not that we're punishing you before you do anything - that's done with some regularity everywhere in the world and I don't think anyone has a serious problem with it. The problem is that we're punishing people without any kind or trial or other vetting process for the evidence.

Then again, if you're on (or watching) MSNBC the whole "knowing what you're talking about" thing probably isn't a big concern for you...

**Oldgamer** · June 02, 2009, 08:11 PM

The whole point of Obama's ideas about "prolonged detention" is not that someone has actually committed a crime, or plotted to commit a crime. It's that they "might" commit a crime. A crime ... defined by whom? And for what reason?

Everyone seems to assume that he's talking about terrorists. Has it never occurred to anyone that he's talking about domestic dissent?

**magickyleo101** · June 02, 2009, 08:31 PM

Originally Posted by Oldgamer

The whole point of Obama's ideas about "prolonged detention" is not that someone has actually committed a crime, or plotted to commit a crime. It's that they "might" commit a crime. A crime ... defined by whom? And for what reason?

Everyone seems to assume that he's talking about terrorists. Has it never occurred to anyone that he's talking about domestic dissent?

So you're saying that this isn't just something that could one day be abused? That Obama's right now actively planning to use this on people who disagree with him?

What's the evidence for that assertion? Do you have some direct quote from Obama? Some leak from the administration?

I mean, do you have anything more than the content of Rachel Madow's rant to back this up? It's already pretty obvious from the minority report analogy that she doesn't know what's she's talking about...

**Tiberius Tosi** · June 02, 2009, 08:45 PM

I don't know much about law but, if these people were tried under a military tribunal wouldn't the evidence be presentable no matter the manner in which it was attained?

**magickyleo101** · June 02, 2009, 08:59 PM

Originally Posted by Tiberius Tosi

I don't know much about law but, if these people were tried under a military tribunal wouldn't the evidence be presentable no matter the manner in which it was attained?

No. The 4th Amendment enshrines in the Constitution a protection against unreasonable searches, and that protection is going to extend to any government action, including military action. Those protections can, of course, be waived, which is probably the legal theory they use when you're a member of the military (i.e. they might say, "you willingly joined and gave up these rights in doing so") but that theory is going to run into obvious problems if you try to apply it to suspected terrorists who obviously never voluntarily signed up to be tried.

There are really only two options that I know of which could get around the tainted evidence problem:

First, you could say that the evidence really wasn't obtained improperly because the 4th amendment only forbids the unreasonable collection of evidence, and the methods used to attain the evidence here, while unreasonable normally unreasonable, were reasonable under these circumstances (i.e. we're at war with terrorism, so this warrant-less search was OK).

Second, you could say that even though the evidence was obtained in violation of the 4th amendment, the evidence can still be used at trial. There's some reason to think that this is the way the court is heading generally, and it's probably the best of many bad solutions. Essentially the reasoning goes like this: The exclusionary rule isn't anything that written into the 4th Amendment - it's something judges have created as an enforcement mechanism for 4th Amendment rights. So judges could come up with another enforcement mechanism - for example they could say (as is the norm in other countries) that illegally obtained evidence is going to be excluded unless doing so would be really, really costly to the justice system (e.g. it would let terrorists out to roam the streets).

With such a theory the court might say that even though the evidence here was obtained improperly (e.g. through illegal wiretaps), we can use it in court to convict terrorists because the importance of using all the evidence here outweighs the harm to the 4th amendment from letting illegal evidence through in just this one case.

**Oldgamer** · June 02, 2009, 09:29 PM

You make some very good points about the Fourth Amendment, which is exactly why something like this would be extremely useful in suppressing domestic dissent. It never goes to court. The government accuses someone of being dangerous and detains them. It's indefinite. Theoretically, it might never end.

Also, have you ever heard of REX-84? It was a plan developed by the government in 1984 ... great year! ... designed to deal with large-scale civil unrest, to be managed by FEMA, in cooperation with US Northern Command. During the Iran-Contra hearings, REX-84 was mentioned several times.

In 2006, Haliburton announced that it had been awarded $385 million to construct the camps for the Department of Homeland Security. In October, 2006, Congress passed the Military Commissions Act, which among other things, allows the government to detain indefinitely citizens who have been deemed "enemy combatants" ... no charges required, and no judicial involvement.

Note that this happened under Reagan and Bush, and this plays directly into Obama's hands, should he decide to use it for his own ends.

The Left never expected him to use such laws against the Guantanmo detainees. All over the net, there is shock and dismay at what he said before the National Archives, standing in front of the US Constitution. So, I guess the question is, "How far will he go with this?"

EDIT: I live only about six miles from a detainment camp on the Illinois River. It is kept in good repair, and has a capacity of 1400 prisoners. You can see it from the river, which is where I first saw it. Wondering what it was, I asked around, and finally found a National Guardsman who blurted out, "Oh, that's the FEMA concentration camp."

**magickyleo101** · June 02, 2009, 09:55 PM

Originally Posted by Oldgamer

You make some very good points about the Fourth Amendment, which is exactly why something like this would be extremely useful in suppressing domestic dissent. It never goes to court. The government accuses someone of being dangerous and detains them. It's indefinite. Theoretically, it might never end.

I agree that there's a really dangerous potential for abuse - I just don't think that's what Obama's going for. Also, if he's true to his word about constructing a multi-branch system for vetting these cases, a lot of the potential for abuse will be really mitigated. (Then again, he hasn't really been that good about keeping his promises.)

I think the problem Obama has comes from the fact that 1) he has to pick an option which the executive branch has control over and 2) the supreme court has control over the exclusionary rule. So if he gives the detainees trials and the supreme court doesn't go Obama's way on the exclusionary rule, he's SOL because he's stuck without any evidence to get convictions on.

And I don't really know what you're trying to draw from the REX-84 thing. I read the wikipedia page, and I agree that it's scary stuff, but if you're trying to say something like "all these things make a pattern towards some broad plan," I think that would be a pretty weak inference.

Also, I stand by what I said about Maddow totally missing what's wrong with the Obama plan. The problem is no trials, not prison before you kill anyone.

**Oldgamer** · June 02, 2009, 10:12 PM

Originally Posted by magickyleo101

I agree that there's a really dangerous potential for abuse - I just don't think that's what Obama's going for. Also, if he's true to his word about constructing a multi-branch system for vetting these cases, a lot of the potential for abuse will be really mitigated. (Then again, he hasn't really been that good about keeping his promises.)

I think the problem Obama has comes from the fact that 1) he has to pick an option which the executive branch has control over and 2) the supreme court has control over the exclusionary rule. So if he gives the detainees trials and the supreme court doesn't go Obama's way on the exclusionary rule, he's SOL because he's stuck without any evidence to get convictions on.

I'll agree with you on this. I don't know your background, but it seems that you have at least a basic handle on the law, with regards especially to the exclusionary rule.

EDIT: I've read your profile, now!

And I don't really know what you're trying to draw from the REX-84 thing. I read the wikipedia page, and I agree that it's scary stuff, but if you're trying to say something like "all these things make a pattern towards some broad plan," I think that would be a pretty weak inference.

The Wikipedia article is one of the most "credible" pieces on the internet, regarding FEMA's role in a national emergency. Some of the other websites are just plain looney. I'm not a conspiracy theorist by any stretch of the imagination, and I usually dismiss such ideas out-of-hand.

The thing that has bothered me is the sheer abundance of such websites, and the fact that I live just a few miles away from a site identified as a detainment center. The National Guard base, a couple of miles away from the center, has had numerous international units train in it, in recent years, in addition to real, live, blue-helmeted UN troops.

I'm getting just worried enough to investigate the wording of laws regarding these issues, to see if there's a real possibility of trouble, in the near or far future.

Also, I stand by what I said about Maddow totally missing what's wrong with the Obama plan. The problem is no trials, not prison before you kill anyone.

Your position is an honest one, and I don't fault you for it.

**Mr. Pink** · June 02, 2009, 09:39 PM

Video is not working for me. Is it about the guy form Guantanamo Bay that'd been held for something like 8 years without trial who killed himself?

Poor bastard.

**Oldgamer** · June 02, 2009, 09:53 PM

Originally Posted by Danny_C_1

Video is not working for me. Is it about the guy form Guantanamo Bay that'd been held for something like 8 years without trial who killed himself?

Poor bastard.

Why don't you try copying the URL and pasting into your browser? Sometimes, that works for me when UTube doesn't seem to respond.

Also, there's nothing wrong with compassion, even for the likes of the Islamists held at Guantanamo.

**~~The Devil's Sergeant~~** · June 03, 2009, 12:00 PM

Watching this clip reminds me of the acceptance of spectral evidence during the Salem witch trials. Something tells me she isn't telling the whole story.