Tag: due process

Preventive Detention: What Would Thomas Jefferson Do?

Glenn Greenwald writes,

By all accounts, the White House is going to unveil its proposal for indefinite detention within the next four to eight weeks, and it has begun dispatching proponents of that scheme to lay the rhetorical groundwork. In The Washington Post today, one of the proposal’s architects – Law Professor Robert Chesney, a member of Obama’s Detention Policy Task Force – showcased the trite and manipulative tactics that will be used by advocates of indefinite detention to win support for their radical program [anyone doubting that detention without trials is radical should recall that Obama’s own White House counsel Greg Craig told Jane Mayer back in February that it’s “hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law”; New York Times reporter William Glaberson wrote that “Obama’s detention policy “would be a departure from the way this country sees itself”; Sen. Russ Feingold warned that it “violates basic American values,” “is likely unconstitutional,” and “is a hallmark of abusive systems that we have historically criticized around the world”; The New York TimesBob Herbert said that “Americans should recoil as one against the idea of preventive detention”; and the Obama policy’s most vigorous Congressional proponents are Tom Coburn and Lindsey Graham].

According to Chesney, though, the real extremists are those “on the left” who oppose preventive detention; those who believe that radical liberties such as criminal charges, trials and due process are necessary before the state can put someone in a cage for life; those who agree with Thomas Jefferson that trial by jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Chesney insists that such people (these “leftists”) are (as always) the mirror images of the extremists on the Right, who “carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.” These two equally partisan, radical, extremist sides (i.e., those who believe in due process and trials and those who oppose them) are – sadly – “shrink[ing] the political space within which reasonable, sustainable policies [i.e., Chesney’s preventive detention scheme] might be crafted with bipartisan support.”

…This is how political debates are typically carried out in Washington by the Serious Centrists and Responsible Adults. Chesney writes an entire Op-Ed defending the soon-to-be-unveiled preventive detention policy without describing a single aspect of it. To Serious people, the substance of the policy is irrelevant. What matters is that anyone who opposes it is a radical, partisan, shrill extremist. Conversely, as long as the Obama administration stays somewhere in the middle of the two sides – between Tom Coburn and Russ Feingold – then it proves they are being sensible, moderate and responsible, regardless of how extreme and dangerous their proposal actually is, and regardless of how close to Coburn and as far from Feingold as they end up.

No system of justice is perfect. But it’s no improvement to decide that in certain cases we can just do better without one.

All that such a policy does is to move the act of judging back one level – and to locate it at the point where someone, somewhere decides that this particular case doesn’t get judged in the usual way. And so the accused gets “detention” rather than “trial, followed possibly by prison.” But we are still putting a person, and perhaps a dangerous person, in a cage, are we not? The acts of judging and of punishing are still there, and we have hidden them only from ourselves.

It is no improvement to shift the fundamental problem of justice to a different location – out of open courtrooms, out of review, out of established legal tradition – and into a shadowy realm where potentially anything goes. We’re deluding ourselves if we think that it is a step forward or a refinement in the criminal law to have its work done somewhere else, by someone else. The work goes on, and with it all of the associated dangers. Western legal philosophy has spent centuries forcing these dangers out into the open, so that we may confront them directly.

But oddly, Professor Chesney is actually right in one respect:

The problem is twofold. First, the national dialogue has been dominated by a pair of dueling narratives that together reduce the space available for nuanced, practical solutions that may require compromise from both camps. On the one hand, critics of the government’s policies promiscuously invoke the post-Sept. 11 version of the Imperial Presidency narrative, reflexively depicting security-oriented policies in terms of executive branch power aggrandizement (with de rigueur references to former vice president Dick Cheney; his chief of staff, David Addington; or Justice Department attorney John Yoo, if not all three). On the other hand, supporters of the government’s policies just as carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.

Second, individual issues in the debate over detention policy are often framed in stark and incompatible terms. Take, for example, the Guantanamo detainees, who are portrayed in some quarters as innocent bystanders to the last man and in other quarters as the “worst of the worst.” While both extremes are misleading, their influence is pervasive.

True enough. A reasonable middle position? Give the detainees trials in which they can individually prove their guilt or innocence. Surely they aren’t all guilty, and I don’t believe I’ve ever seen anyone claim that they are all innocent, either. The truth really is somewhere in between, and it just so happens that we already have a mechanism for sorting out muddled cases like these.

The No-Rights List

A media drumbeat is steadily building to keep those on the government’s terrorist watch list from buying firearms. A month ago, Rep. Carolyn McCarthy (D-NY) introduced a bill to bar them from purchasing a gun even if they had no legally disqualifying criminal conviction. Now Sen. Frank Lautenberg (D-NJ) has introduced his own legislation to achieve the same goal.

This is arbitrary government at its best. The “no-fly” list used to prevent suspected terrorists from boarding aircraft has tagged Nelson Mandela, Sen. Ted Kennedy (D-MA), Rep. Loretta Sanchez (D-CA), Rep. Don Young (R-AK), Rep. John Lewis (D-GA), a retired general, a Marine reservist returning from Iraq, the President of Bolivia and dead 9/11 hijackers, a former federal prosecutor, and over twenty men named John Thompson as threats to our national security. The list now contains over 1 million names. This prompted calls for probes into the watch list, and the ACLU filed suit to challenge the list.

The push to prevent firearms purchases by persons on this list is nothing new. Here is White House Chief of Staff Rahm Emanuel saying in 2007 that, “if you’re on that no-fly list, your access to the right to bear arms is cancelled, because you’re not part of the American family; you don’t deserve that right. There is no right for you if you’re on that terrorist list.”

If the government can take an enumerated liberty away from selected citizens by placing them on a “no-rights” list without due process, the rule of law is dead.

Ecuador’s Continuing Attack on the Free Press

Last year the Ecuadorian government seized two TV channels broadcasting on public airwaves and one cable channel along with hundreds of other businesses supposedly owned by the Isaías family, an unpopular Ecuadorian business group that the government bailed out in the late nineties. In seizing those assets, the current government claimed to be cashing in on a long overdue debt owed to it by the Isaías family. Leaving the violations of due process aside, this was a significant attack on freedom of the press in Ecuador given that the two public access channels garnered almost half the country’s TV audience. Back then the government said it was going to sell off the seized channels but it has not done so yet.

The last elections in my country, held on April 26, showed how government ends up manipulating state media: 79% of the political ads aired on these channels went for the official candidates despite the fact that the new electoral rules require every candidate to have equal air time.

Since those elections, Carlos Vera, the most popular morning news anchor in the country, quit his channel Ecuavisa because he claims to have been subject to the self-censorship imposed by Ecuavisa’s owner. According to Vera, the owner wanted to dictate whom he should interview on his show and chose not to air one of his interviews which, coincidentally, was with the President’s main political opponent. Vera issued a public statement explaining that he would not censor his show nor would he let anybody else do so. Since then, Ecuavisa’s independence has been severely questioned.

This leaves us with one important public airwaves channel that is still independent: Teleamazonas.

For the past couple of weeks there have been growing rumors that the government might shut down Teleamazonas applying the laws of Conartel, the regulator of TV and radio stations. According to Ecuadorian regulations, which have their origins in the military dictatorship of General Rodríguez Lara of the early 1970s, a TV channel or radio station can be sanctioned symbolically for $20 the first time it commits a violation; suspended for up to 90 days the second time; and lose its concession to operate for good the third time. Conartel has already imposed two sanctions on Teleamazonas.

In the first case Teleamazonas was sanctioned for showing bull fighting images, which Conartel has considered to be “conducive to violence” and thus, in violation of its regulations. This is a questionable rule, especially in a country in which bull-fighting takes center stage every December in Quito. In the case of the second sanction Conartel is applying a clause that forbids the live reporting of unconfirmed events. Such a law would make illegal most of the news reported in CNN or other news networks that report in real time. In this particular case, Teleamazonas aired images of what appeared to be a clandestine vote-counting center.

For now, we are waiting to hear from Conartel about the third sanction and what it is going to do about the second sanction, which would, if enforced, mean the suspension of Teleamazonas for up to 90 days. I wonder what freedom of expression Ecuadorians would be left with if the government decided to apply Conartel’s rules consistently to every TV and radio station.

Meanwhile the former Minister of the Interior, Gustavo Larrea, called attention to “journalists whose salary comes from foreign powers” including the CIA, though he did not specify what individuals he was referring to.

When asked about details he merely replied that it was the duty of a legislative commission to find out. I guess he is suggesting that individuals like myself, who write for an Ecuadorian newspaper but are not employed by an Ecuadorian company, should be investigated…

What is happening in Ecuador, and what has been happening in Venezuela over the last few years – the shutdown of RCTV, and the ongoing persecution of Globovisión – shows that in countries with a weak rule of law and public ownership of the airwaves, regulations can easily serve those in power who want to silence independent voices. Nobel Laureate Ronald Coase warned Americans about this potential abuse of power in 1959 in his classic “The Federal Communications Commission.” Back then he wondered, “In other fields it is almost always agreed that the use of property rights and of the price system serves the public good, why not in the case of radios [and TV]?”

Obama’s Military Commissions

President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses.  Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”

Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:

What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins.  It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.  Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.

Greenwald is right.  The primary issue is not due process.  The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?

For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.