Thursday, May 21, 2009

The Group Five problem 

As everyone knows by now, President Obama and former Vice President Cheney both gave speeches today on the topic if U.S. national security.

The text of President Obama's speech is here, and the video is here.

Former Vice President Cheney spoke at the American Enterprise Institute, and the text of his speech is here, the video here, and the audio only here.

Depending upon one's partisan standing, there is of course much to nitpick or get hysterical about with either speech. A conservative could look at this passage from President Obama's speech, when he discusses why he discontinued enhanced interrogation techniques:
"They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured."
(emphasis added)

...and a conservative might think, "what, are they going to use a duller blade or a more rusty blade to decapitate people -- is that the incremental likelihood of mistreatment that he is talking about?" A liberal might take offense at section of Vice President Cheney's speech that all but accuses the current administration of playing politics with national security:
"The administration seems to pride itself on searching for some kind of middle ground in policies addressing terrorism. They may take comfort in hearing disagreement from opposite ends of the spectrum. If liberals are unhappy about some decisions, and conservatives are unhappy about other decisions, then it may seem to them that the President is on the path of sensible compromise. But in the fight against terrorism, there is no middle ground, and half-measures keep you half exposed. You cannot keep just some nuclear-armed terrorists out of the United States, you must keep every nuclear-armed terrorist out of the United States. Triangulation is a political strategy, not a national security strategy."
(emphasis added)

The section of President Obama's speech that I would like to focus on is when he discusses the five distinct types of detainee cases at Gitmo, with primary emphasis on the fifth type:
"Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

"Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

"I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."
I have re-read this section a half dozen times, and for the life of me, I cannot figure out how President Obama can guarantee that all of these Group Five detainees will stay incarcerated. He states unequivocally that he is not going to release them, but goes on to say or imply that they will be afforded some kind of due process ("in line with the rule of law") and that the decisions will be subject to both judicial and congressional review ("within a system that involves judicial and congressional oversight"). Not to be overly Manichean, but President Obama either has complete control of the disposition of all of the Group Five detainees, or he does not. If he does, his guarantee is worth something; if he does not, then there exists the possibility that the power to release such detainees will be out of his hands. Or am I missing something?

UPDATE: Andy Worthington over at HuffPo is focused on the same Group Five issue that I am, but from a somewhat different perspective:
"After dropping, in passing, the news that the review team has now approved 50 prisoners for transfer to other countries (a few weeks ago, it was just 30), Obama moved on to a topic that is at least as worrying to lawyers, civil libertarians and those concerned with constitutional issues as the proposal to revive the Commissions: those prisoners who, as the President put it, 'cannot be prosecuted yet who pose a clear danger to the American people.'

"Although it was refreshing to hear Obama state, 'I want to be honest: this is the toughest issue we will face,' the examples he gave of prisoners who might be imprisoned indefinitely under a form of 'preventive detention' -- 'people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans' -- cannot be regarded as a separate category of prisoner from those, like Ahmed Khalfan Ghailani, who will face a trial in a U.S. federal court.

"Frankly, to even entertain the prospect that a third category of justice (beyond guilt and innocence) can be conjured out of thin air without fatally undermining the principles on which the United States was founded is to enter perilous territory indeed. Fundamentally, Guantánamo is a prison that was founded on the presumption that the Bush administration's 'new paradigm' justified 'preventive detention' for life, and although Obama stepped up his assurances at this point in his speech -- talking about 'clear, defensible and lawful standards,' 'fair procedures,' and 'a thorough process of periodic review' -- it is simply unacceptable that 'preventive detention' (which he referred to, euphemistically, as 'prolonged detention') should be considered as an option, however much he tried to legitimize it by stating, 'If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.'

"To put it bluntly, it doesn't matter how much you dress it up. Look at the sentence, 'Hold[ing] individuals to keep them from carrying out an act of war,' replace 'an act of war' with 'a crime, any crime,' and you will, I hope, realize why the proposed policy is so terrifying and so thoroughly unacceptable. If a president came to power promising to 'hold individuals to keep them from committing a crime, any crime,' I'd be very worried indeed."
(emphasis added)

Is Andy Worthington really arguing that process is the only thing that matters? I think it's possible that President Obama might put him in the group he mentioned near the end of his speech:
"On the one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and would almost never put national security over transparency."


By Anonymous Anonymous, at Thu May 21, 10:03:00 PM:

In my opinion, Cheney's speech was spot on. He schooled Obama, not the other way around. Obama's closing sentences were pure gibberish ... rambling of some guy who wants us to believe he's smart, and focused. Give the average guy the straight dope, in simple English. No need to mince words or get cute.

Obama may believe that he's doing the right thing, but he is out of synch with America. For me, I just want each and every one of these guys dead. Find out what they know, and then return them to the battlefield (in the company of some GIs) with a flourescent yellow shirt with printed bulls-eye on it. They're all bad, they were all engaged in battle, and they're all threats to us.

I'm also curious how Obama does what he says he's going to do, when Washington is starting to pay attention to voters who do not want these guys on our soil.  

By Blogger D.E. Cloutier, at Thu May 21, 10:37:00 PM:

Subject: Risk vs. Gain

Let's talk politics.

Obama doesn't have the power to make guarantees.

And here is the bottom line politically: If one of these characters from Gitmo participates in a major terrorist attack inside the U.S., no Democrat will win the White House for at least a generation -- and maybe two.

That seems like a lot of risk for not much gain.  

By Blogger TigerHawk, at Thu May 21, 11:22:00 PM:

The left has constantly pointed to the theoretical problem of "indefinite" or "lifetime" detention, as if this were the preference of the supporters of Gitmo. It is a false and misleading choice. All wars are indefinite until one side loses. World War II began as a historical matter in 1931 with Japan's invasion of China, and it might have gone on much longer if key battles had unfolded a bit differently (Midway, El Alamein, Stalingrad, Kursk, and so forth) or key allies had acted differently (suppose Stalin had sued for peace in late 1941, when the Krauts were knocking on the doors in Moscow). In the current war, al Qaeda could end the war it declared in 1996 and 1998 tomorrow. Al Qaeda central command, including bin Laden if he is alive, could surrender and instruct their followers the world over to lay down their arms against the United States. If that happened and we deemed our war with al Qaeda resolved, there would be a very good argument that the Gitmo detainees should be released.

Point is, this war will end. Al Qaeda can bring it to a conclusion, or substantially to one. All it needs to do is change its mind, or decide that the bloodshed is not worth the objective. That could happen at any time, and if it does we should seriously entertaining releasing the Gitmo detainees, for the war will have been over.  

By Blogger D.E. Cloutier, at Thu May 21, 11:33:00 PM:

This comment has been removed by the author.  

By Blogger D.E. Cloutier, at Thu May 21, 11:38:00 PM:

Re: "entertaining releasing"

I hope you don't mean the planners of 9/11, TH. That is a war crimes issue. They belong in an American-controlled "Spandau" for life or until their execution.  

By Anonymous Anonymous, at Thu May 21, 11:47:00 PM:

E81: "Obama ... states unequivocally that he is not going to release [any Group Five detainees], but goes on to say or imply that they will be afforded some kind of due process"Hmmm.

Major Hochstetter: You vill receive a fair trial, after vich you vill be shot.

Obama: You will receive a fair trial, after which... um, you will remain in jail.


By Blogger Fellow American, at Fri May 22, 02:49:00 AM:

Not to underthink this after all the thoughtful comment here, but Obama is a damned liar. He knows full well the paradox he is presenting with that 5th group, but he just says it anyway. Cheney showed him how a grown up leads. Meanwhile we're saddled with this arrogant teenager running things. I hope we survive his stupid ass.  

By Anonymous Anonymous, at Fri May 22, 06:35:00 AM:

Let's face it, it was a hot button issue during the election, and O made his promise. Now if he doesn't close Gitmo, he looks weak, a lame duck first termer.
So he's ducking and weaving and schucking and jiving that he's got an answer to the problem when in fact he does not.

The one big reason that I never liked Obama is because of his ongoing use of so many words. ANSWER THE QUESTION!! Some folks would rather be baffled by BS I guess...

He doesn't have a plan, but he has a promise and an ego. Right now he's riding on pure ego.  

By Blogger JustOneMinute, at Fri May 22, 06:45:00 AM:

If I were spinning for Obama, here is how I would deal with:

"Let me repeat: I am not going to release individuals who endanger the American people."

If the reviewing authority turns a guy loose, then the person is, in Obama-world, not a danger to anyone. We hold this truth to be self-evident, since if they *were* a danger, they would have been held.

Apparently, there will be no problems with missing, incomplete, inconclusive or inadmissible evidence in Obama-world, nor will the reviewers err.

Tom Maguire  

By Anonymous Anonymous, at Fri May 22, 09:13:00 AM:

Yesterday was bizarre. Obama has picked a fight over Gitmo in such a way that he's at odds with the Democrats in Congress and even made Cheney look good. Reid must already be mad at Obama for killing the Las Vegas tourism industry. Pelosi must be ballistic for being outed on waterboarding. I don't see how Gitmo helps Obama in the long run -- Obama wanted to sound noble yesterday ... "I'm better than Bush" ... but Gitmo is now a setup for a lot of negative stories ... which is why the Democrats in Congress voted against funding a closing. Wait for the reaction in places like New York City when terrorists are brought here for trial, with court-appointed defense counsel.

Meanwhile, California is going broke. I actually read that one of the options is to speed up delivery of stimulus money to California -- WTF?. That's because stimulus spending is more aimed at 2010 than 2009 ... Obama can't even piss away money well.

Meanwhile, Little Timmy made some interesting comments yesterday that got lost in the noise. It’s “critically important” to bring down the American deficit, Geithner said. “It’s very important that this Congress and this president put in place policies that will bring those deficits down to a sustainable level over the medium term,” Geithner said in an interview with Bloomberg Television. Medium term is the key concept. We may start seeing weak sales of our debt. The dollar has been relatively strong because it's served as a save haven ... we can't count on that forever.

Geithner still doesn't have a real staff at Treasury because that's the way Obama & Co want it. Little Timmy could prove an interesting figure over the next year. Will he continue to be Obama's "fire hydrant" -- Obama's words -- not mine -- or will he put up a fight against Obama & Co's profligacy. My bet is on the latter ... Developing.

California may be Obama's biggest challenge and his downfall. State budgets have been merging with the federal budget as a practical matter because of forced mandates, especially for Medicare. California isn't the only state going broke, so that a consolidated federal-state budget would look even worse than the federal. Does Obama turn on the federal dollar printing press to cover this? If so, the federal deficit balloons even further -- Little Timmy has no hope of bringing "those deficits down to a sustainable level over the medium term.”

I used to think that Obama would buy his way through 2010, and that the wheels would fall off later. You could see California's troubles coming -- I thought the deal with Pelosi was to have Obama's spending carry California for at least a year or two. That may not be the case -- a California bankruptcy in 2009 would be a holy shit headline and an enormous political problem for Obama. You don't need a crystal ball to see where Obama-Pelosi would take us as a nation -- just look at California today.  

By Anonymous Anonymous, at Fri May 22, 09:14:00 AM:

It comes down to which side to you err on.

Do you err for the defendent or do you err for the prosecution.

It would seem to me that the left would err for the defendent because they believe the more the US is seen as unjust the more enemies the US creates. Even at the risk of letting those that would do us harm, go.

For the right, to err for the prosecution keeps the US safe by keeping those we have reasonable proof of, in prison. Even at the risk of holding some who are innocent.


By Anonymous Anonymous, at Fri May 22, 09:14:00 AM:

That was Link as Anon 9:13 am  

By Blogger TOF, at Fri May 22, 09:42:00 AM:

I learned an important lesson at the time of the Nixon admininstration: Never, ever, allow a lawyer to assume a position of leadership. They will fail every time.  

By Blogger Georg Felis, at Fri May 22, 09:52:00 AM:

More correctly, Cheney gave a speech on National Security, and Obama gave a speech on National Popularity. (i.e. our popularity among other nations)

So whats Obama going to do when a Man-Made Disaster Specialist takes Americans hostage overseas, and starts to threaten to kill them one at a time unless his "Brothers in Peace" are released from their evil American kidnappers? And starts throwing them one at a time out a window? On international TV.  

By Anonymous Anonymous, at Fri May 22, 10:50:00 AM:

Actually, there is a sixth group, the detainees who have not yet been captured. Our military will pick up folks who must be sequestered. Where will we put them?  

By Anonymous Anonymous, at Fri May 22, 10:52:00 AM:


That was my take also. I work from home, so actually got to watch these speeches.

After Cheney spoke, I was watching Bob Bechel on Fox going nuts on how Cheney 'attacked' the sitting president, yada yada. Nevermind that Obama still hasn't owned a decision, and he's still cleaning up for George. I never heard that from Bush, and Clinton left the country in a decent mess in his own right.

Cheney put it out there: we did 7 years without another attack, and we make no apologies for it. We performed Enhanced Interrogation on 3 scumbags, using the most select, most highly trained, most disciplined personnel from CIA. It was reviewed for legality, and the appropriate people were briefed. Either you toss them under the bus, or you don't. He also made it crystal clear that the 26 words (?) redacted from the docs released are crucial to understanding that document, and the acts prevented and lives saved are relevant to forming a reasonable judgment.

Obama is in a no-win here. His Congress is listening to the shouts of 'your job is toast' after pissing away a few extra trillion, and we don't want these rats in our backyard (like Newburgh NY).

Cheney schooled him, and put his street cred up against this punk. 30 years in the know, against a few months. If Obama is too arrogant, he might just wind up on the short end here.  

By Anonymous Anonymous, at Fri May 22, 11:58:00 AM:

I guess we have to see if the majority of Americans think it is Sept. 10, 2001, or think it is Sept. 12, 2001.
Many have forgotten, or want to put it behind us for many reasons, pragmatic or otherwise.

But as TH illuminated, mobody on the other side has called for a cease-fire on the Great Satan.

With respect to the first WTC bombing in 1993:
Ramsi Yusef, by the way, who was convicted of murder in a Federal Court in New York, with admissible evidence, is still alive and in a Federal Supermax prison. And will be for the rest of his natural life.
Sheik Abdul-Rahman is in a Federal prison hospital in North Carolina, I think, due to his bad health.
And the judge that convicted them has had body guards for years after the trial and conviction.


By Blogger knighterrant, at Fri May 22, 12:32:00 PM:

For the other side I recommend this post from Booman Tribune. In brief, he quotes from German General Heinz Guderian, "He (Hitler) said: 'The soldiers on the Eastern Front fight far better. The reason they give in so easily in the West is simply the fault of that stupid Geneva convention which promises them good treatment as prisoners. We must scrap the idiotic thing.'"

Booman concludes, "Hitler wanted to jettison the Geneva conventions because our adherence to them was costing him dearly. It seems like quite a small step for someone who was operating death camps at the time. But he was talked out of it. Even Hitler didn't revoke the Geneva Conventions. But Cheney and Bush did. And they're proud of it."  

By Blogger D.E. Cloutier, at Fri May 22, 02:24:00 PM:

Godwin's Law. You lose, KnightErrant.  

By Anonymous Karl, at Fri May 22, 04:56:00 PM:

Sorry to self-promote, but as I noted at Just One Minute, what Obama is talking about here -- without having the guts to name it -- is preventive detention. Greenwald's head is exploding today over it.  

By Blogger davod, at Fri May 22, 06:06:00 PM:

"But he was talked out of it. Even Hitler didn't revoke the Geneva Conventions. But Cheney and Bush did. And they're proud of it."

You might want to read the Geneva Convention the US signed before writing gibberish.

The ratbags at Guantanamo and elsewhere are not covered.  

By Blogger Dawnfire82, at Sat May 23, 02:55:00 PM:

Andy Worthington needs to think harder.

His little rhetorical trick rests on the premise that crimes and acts of war are comparable and interchangeable when they are in fact *completely different things* that do not warrant comparison.

For instance, imagine if instead of inserting 'committing a crime' you inserted 'walking their dog.' Automatically, the statement becomes absurd because committing crimes and walking dogs are not the same thing.  

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