Francis A. Boyle Law Building 504 E. Pennsylvania Ave. Champaign, IL 61820 USA 217-333-7954 (phone) 217-244-1478 (fax) fboyle at law.uiuc.edu (personal comments only)
________________________________ From: aalsmin-l-bounces at lists.ubalt.edu [mailto:aalsmin-l-boun...@lists.ubalt.edu] On Behalf Of Boyle, Francis Sent: Sunday, November 16, 2008 8:42 AM To: aalsmin-l at lists.ubalt.edu Subject: [AALSMIN-L] NO TO US PREVENTIVE DETENTION LAW! Sensitivity: Private It is simply amazing that Cole would join ranks with the war criminal Goldsmith to advocate a system of preventive detention, another constitutional abomination, along with Goldsmith's "national security courts." In the Hamdan case the Supreme Court has already applied the Geneva Conventions to Al Qaeda members, Hamdan being Bin Laden's driver. Under the Third Geneva Convention, Al Qaeda members can be lawfully detained without instituting a system of preventive detention here in the United States, let alone national security courts. If there is one thing constitutional law history teaches us, it is that violations of the Constitution designed to deal with aliens will inevitably be applied to U.S. citizens. Indeed, it was Secretary of State (former Chairman of the Joint Chiefs of Staff General) Colin Powell who originally argued that the Third Geneva Convention should be applied to al Qaeda and Taliban. Due to the influence of Federalist Society lawyers such as Yoo, Goldsmith, Gonzalez , Wedgewood et al, it was not, resulting in the Bush administration's torture scandal, a crime against humanity. We applied the Third Geneva Convention to captured Vietcong guerillas during the Vietnam War. We can certainly apply the Third Geneva Convention to captured al Qaeda without instituting preventive detention here in the United States. fab Post-Guantanamo--A New Detention Law? By WILLIAM GLABERSON <http://topics.nytimes.com/top/reference/timestopics/people/g/william_glaberson/index.html?inline=nyt-per> Published: November 14, 2008, New York Times As a presidential candidate, Senator Barack Obama <http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html?inline=nyt-per> sketched the broad outlines of a plan to close the detention center at Guant?namo Bay <http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/guantanamobaynavalbasecuba/index.html?inline=nyt-geo> , Cuba: try detainees in American courts and reject the Bush administration's military commission system. Now, as Mr. Obama moves closer to assuming responsibility for Guant?namo, his pledge to close the detention center is bringing to the fore thorny questions under consideration by his advisers. They include where Guant?namo's detainees could be held in this country, how many might be sent home and a matter that people with ties to the Obama transition team <http://topics.nytimes.com/top/news/us/series/the_new_team/index.html?inline=nyt-classifier> say is worrying them most: What if some detainees are acquitted or cannot be prosecuted at all? That concern is at the center of a debate among national security, human rights and legal experts that has intensified since the election. Even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted. "You can't be a purist and say there's never any circumstance in which a democratic society can preventively detain someone," said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration. Although the nation has long had limited legal procedures for detaining dangerous people who have not been convicted of a crime, the issue has become particularly controversial in the context of Guant?namo, where some detainees have been held for almost seven years without being charged. Whether the Obama administration should push for a preventive detention law has inspired "a very hot and serious debate," said Ken Gude, a national security scholar at the liberal Center for American Progress, adding, "I've had conversations with progressives who think it is a good idea and conservatives who think it's a terrible idea." The president-elect's transition office would not comment on whether that idea was even under discussion. But human rights groups have been mounting arguments to counter pressure that they say is building on Mr. Obama to show toughness, perhaps by echoing the Bush administration's insistence that some detainees may need to be held indefinitely. The international law of warfare provides authority for governments to hold captured enemy fighters until the completion of a conflict. Tens of thousands of German and Italian prisoners of war were held inside the United States during World War II. But particularly inasmuch as the Bush administration invoked that authority as a basis for its much-criticized detention policies, a move by Mr. Obama to seek explicit authorization for indefinite detention without trial would be seen by some of his supporters as a betrayal. Opponents of a preventive detention law say that continuing to treat captives as detainees instead of defendants in court would support terrorists' self-image as warriors rather than criminals. And though the Guant?namo center might be closed, they say, the new law would effectively import Guant?namo and its image into the United States. "Not only do you not need a system of preventive detention, but it would perpetuate the problem of Guant?namo and put us right back in the same dead end we are in now," said Elisa Massimino, executive director of Human Rights First. On the other hand, some proponents of such a law say it would clarify questions left murky by the Bush administration's years of legal battles over Guant?namo. Benjamin Wittes, a fellow at the Brookings Institution <http://topics.nytimes.com/top/reference/timestopics/organizations/b/brookings_institution/index.html?inline=nyt-org> , argued in a book published in June that Americans needed to cross a "psychological Rubicon" and accept the idea that preventive detention was a necessary tool for fighting terrorism. "I'm afraid of people getting released in the name of human rights and doing terrible things," Mr. Wittes said in an interview. He said debates over Guant?namo had created a mythology that American law permitted detention only upon conviction of a crime. Locking up mentally ill people who are deemed dangerous, he noted, is an accepted American legal practice. At the heart of the debate about whether a preventive detention law is necessary is uncertainty about the risks of criminal trials. Some lawyers warn that given the nature of evidence against some Guant?namo detainees, prosecutors may not be able to convict them. "We have lots of information that is reliable, that tells us someone is a threat and that cannot be proved in court," said Andrew C. McCarthy, a former federal terrorism prosecutor who is now director of the Center for Law and Counterterrorism. Putting detainees on trial in American courts could be difficult in part because suspects captured in war do not receive protections, like warnings against self-incrimination, that are standard police practice. And much evidence against the detainees is classified; intelligence officials say it cannot be disclosed. Further, some interrogation practices, including the simulated-drowning technique of waterboarding <http://topics.nytimes.com/top/reference/timestopics/subjects/t/torture/waterboarding/index.html?inline=nyt-classifier> , might leave crucial government evidence unacceptable to American judges. Jack L. Goldsmith <http://topics.nytimes.com/top/reference/timestopics/people/g/jack_l_goldsmith/index.html?inline=nyt-per> , a former Justice Department official in the Bush administration who has written a book critical of some of the administration's legal strategies, is among those calling for a preventive detention law. Professor Goldsmith, who teaches at Harvard Law School, said in an interview that he believed the administration had correctly asserted a right to detain the men held at Guant?namo. But, he said, Congressional approval would "ensure that we can legitimate holding people for a long term." In the absence of such a law, any plan to move even some of the remaining 250 Guant?namo prisoners to the United States would require a careful analysis of the authority to hold the detainees, several of whom have said they would relish an opportunity to kill Americans. In the end, the Obama administration may conclude that it is simply not feasible to seek a new preventive detention measure. Doing so could portray the new administration as following in the footsteps of President Bush, surely an unlikely goal as Mr. Obama sorts through his options. A version of this article appeared in print on November 15, 2008, on page A13 of the New York edition. Francis A. Boyle Law Building 504 E. Pennsylvania Ave. Champaign, IL 61820 USA 217-333-7954 (phone) 217-244-1478 (fax) fboyle at law.uiuc.edu (personal comments only) -------------- next part -------------- An embedded and charset-unspecified text was scrubbed... Name: ATT1816052.txt URL: <http://lists.washlaw.edu/mailman/private/deathpenalty/attachments/20081116/b8d0d7fd/attachment-0001.txt>
