http://anonymousliberal.com/2009/03/realistic-expectations-on-detainee.html

I happen to think Hamdi was wrongly decided, but the fact is that it remains good law. One can argue that Hamdi should be viewed as only applying to situations where a person is captured on the battlefield, but that is by no means obvious from the opinion, particularly when read in conjuction with other cases like ex parte Quirin (another wrongly decided case). The Obama brief, as I read it, is little more than a restatement of the general detention authority set forth by the Court in Hamdi.

Under the AUMF, the president is unquestionably authorized to use military force abroad against the Taliban and al Qaeda. If, while exercising this power, the U.S. military captures members of those groups, it also has the power--under Hamdi--to detain them. That doesn't mean that they can be held indefinitely without process, but it does mean that they can be held without the need for criminal charges (whether the same is true of people captured within the United States is a different question).

Furthermore, the Obama position really is different than the Bush position, and on more than just a cosmetical level. The Bush administration claimed the authority to detain anyone remotely related to terrorism, including people who weren't even alleged to have any connection to the Taliban or al Qaeda. That's how Chinese Uighurs and other random people ended up at Guantanamo Bay. The Bush administration claimed the inherent authority, regardless of Congressional authorization, to detain whomever it wanted. The Obama administration, on the other hand, is claiming only the authority to detain people expressly targeted in the AUMF. That's an important limitation. It not only limits the class of people who can be subject to military detention, but it makes the authority itself entirely derivative of Congress' authority, meaning Congress could circumscribe it further if it chooses to.

- - posted by A.L., Monday, March 16, 2009

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The notion that an AUMF (an Authorization to Use Military Force) implies an authorization for INDEFINITE (unlimited) detention is a troubling notion.

Take, for example, the Civil Rights Act of 1871, also known as the Ku Klux Klan Act.

That law authorized the use of military force against members and affiliates of the Ku Klux Klan.

The KKK was a terrorist group which used lynchings and vandalism and other forms of violence to terrorize people.

According to documents compiled at the Tuskegee Institute, there is documented evidence of thousands of people being lynched in the USA, largely by members and affiliates of the KKK. (That's despite the 1871 law, which probably resulted in reducing the number of lynching victims.)

But I've never seen anybody say that the AUMF of 1871 authorized indefinite PREVENTIVE detention of KKK members who had been trained as terrorists but who hadn't been charged with a crime.

Gee, where have I heard that before?

You need ironic evil. This is the evil that good men do while they are trying to do good things; as in, "McNamara did more ironic evil than most other public servants in the twentieth century."

We get two(*) kinds of men in powerful positions. Those who do evil on purpose to suit their nefarious ends; and those who do evil without meaning to do so while trying to do good things. The latter may be men you would rather have in positions of power; but the outcome from the actions of both are the same in the end.

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(*) There are other kinds of men, but they do not get elected. No one wants to hear that we can not remake the middle east by force (as one example) and so the rational men and women have no place in our politics except on the "fringe".

How else do you explain 'there is one volition tere'?

Fyslexic dingers. ;-}

The Bush administration claimed the inherent authority, regardless of Congressional authorization, to detain whomever it wanted. The Obama administration, on the other hand, is claiming only the authority to detain people expressly targeted in the AUMF. That's an important limitation.

Just for quibbling's sake, I would quibble. I don't think that Bush articluated his power in this way; he did use the Combatant Review to claim that the Uighurs were supporters of the Taliban, not that they were a generic terrorist enemy.

I agree with Glenn and all those who get a chill from this news. It's a far-from-ideal situation, not at all what we thought an Obama presidency was going to look like. But were our expectations realistic?

Rather than the "24" scenario of the ticking bomb, which has been thoroughly discredited as a rationale for torture, let's posit a different one that I think is realistic. A killer is arrested and tried, but while everyone knows he committed the specific crime, crucial evidence against him is tainted and a conviction can't be won. The killer tells his lawyer he'll kill again, he tells fellow inmates he'll kill again -- for all I know, he tells the judge he'll kill again -- the point being that he can't be held for a crime he hasn't committed yet and he can't be held for the crime he already committed, so he is allowed to go free. Don't we all agree that the family of his next victim would have preferred the judge have some power to exercise prior restraint? In the big picture maybe it's better to sacrifice that victim than to alter our legal system in a way that opens up so many possibilities for abuse, but it's undeniably a sticky question with no easy answer.

I've been accused of being a blind Obama-lover and maybe that's what I am. I put so much hope in the guy I just can't let go of a rosy-outcome scenario. But I believe that once this particular mess, created by BushCo (possible actual terrorists who will commit new acts of terrorism if given the chance but who cannot be convicted in a court of law because of torture-tainted evidence) has been cleaned up, Obama will rescind any and all executive powers to continue to imprison those who have been acquitted of any crime.