Throwing Away The Key

by Patrick Appel

Hilzoy liked most of Obama's speech, except for one detail:

If we don't have enough evidence to charge someone with a crime, we don't have enough evidence to hold them. Period.

The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don't have enough evidence, that's a problem, but it's also a problem with detaining them in the first place.

This is a very basic law. It is not negotiable. Greenwald sorts through myths and facts about "preventive detention":

Bush supporters have long claimed -- and many Obama supporters are now insisting as well -- that there are hard-core terrorists who cannot be convicted in our civilian courts.  For anyone making that claim, what is the basis for believing that?  In the Bush era, the Government has repeatedly been able to convict alleged Al Qaeda and Taliban members in civilian courts, including several (Ali al-Marri, Jose Padilla, John Walker Lindh) who were tortured and others (Zacharais Moussaoui, Padilla) where evidence against them was obtained by extreme coercion.  What convinced you to believe that genuine terrorists can't be convicted in our justice system?

For those asserting that there are dangerous people who have not yet been given any trial and who Obama can't possibly release, how do you know they are "dangerous" if they haven't been tried?  Is the Government's accusation enough for you to assume it's true?

Above all:  for those justifying Obama's use of military commissions by arguing that some terrorists can't be convicted in civilian courts because the evidence against them is "tainted" because it was obtained by Bush's torture, Obama himself claimed just yesterday that his military commissions also won't allow such evidence ("We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods").  How does our civilian court's refusal to consider evidence obtained by torture demonstrate the need for Obama's military commissions if, as Obama himself claims, Obama's military commissions also won't consider evidence obtained by torture?

If there are indeed cases were we don't have enough evidence to convict someone, but there are Very Good Reasons to hold them indefinitely, shouldn't we, at the very least, be given the details of these cases? Why wouldn't Obama want to release case files and give specific reasons why these individuals need to be locked away? If the detainees in question are obviously dangerous –enough so to justify violating the law of the land– wouldn't these facts vindicate his actions? Otherwise, the government is allowed to imprison people without trial without stating a reason besides, "trust us."

After eight years of Bush, that is not an acceptable answer.