The Ethics of Indefinite Detention 101

Think Progress has a thread about a Washington Post article stating that President Obama’s considering using an Executive Order to allow indefinite detention.

Before we obsess too much about a Washington Post article, we should read the damn thing. Here’s the problem Obama inherited:

Three months into the Justice Department’s reviews, several officials involved said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees cannot be charged or released.


They cannot be charged because they were tortured. They (presumably) cannot be released because there is too great a likelihood that they will, upon release, kill Americans. (maybe because they were tortured?) Maybe some of them truly are bad guys, but Bush made it impossible to prosecute them because he tortured them. For example:

Tawfiq bin Attash, who is accused of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official. Little information on bin Attash’s case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify. Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

Here’s the fine line the Obama Administration is trying to walk:

“The challenge for the new administration is how to solve these legal questions of preventive detention in a way that is consistent with the Constitution, legitimate in the eyes of the world and doesn’t create security loopholes that cause Congress to worry,” Zarate said.

And that’s a tough line. Indefinite detention runs counter to U.S. and International law. The real hard fact of the matter is, it is likely that, under the law, these 90 people will have to be released. If they are as bad as the Administration believes, they will likely try to kill again. And we must be prepared for that.

Now, for the Ethics Question:

Is it ethical to release from custody someone who has an extremely high likelihood that he/she will try to kill people?

Is it ethical to imprison someone without charges or trial based solely on the belief that he/she will try to kill people?

Right now, we’re talking about only 90 people. The risk to society for the second option is that any government with such powers will imprison anyone who opposes the government (witness Iran right now).

The risk to society for the first option is that some, or all, of these 90 people will kill others.

I propose the first option, with this observation. The price of the Rule of Law is not cheap. It is said we would rather 10 guilty persons go free than imprison one innocent person. That said, I believe one of the prices we have to bear for the misdeeds of the Bush Administration is the cost of continual survelliance of these 90 individuals upon their release. It won’t be easy. It won’t be fool proof. But, in the balance of things, it will be ethical.

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7 thoughts on “The Ethics of Indefinite Detention 101

  1. What they should be doing, is putting intelligence assets in place, in the likely areas to which they will return once released. Then release them one at a time, with agents ready to watch for them to act again. Maybe their release will lead to future arrests of people who CAN be tried.

  2. Sorry, but I think they should just cut them loose. If the US government and our entire socitety is hinged on the possible actions of a handful of people who have been detained for years, it is time for the US to fall.

    I mean really.

  3. It would help if every single issue weren’t viewed as the definitive issue. Congress isn’t helping with this. Look at what happened with the Uighers—all the uproar about having prisoners on U.S. soil, and the denial of funding to deal with them. The Bush administration put people in limbo and then sh!t over all the possibilities for resolution. If they had used legal methods to determine that the people who really are a threat are a threat, none of this would be an issue.

    Guantanamo is a bizarre state of mind that is manifest—it’s hysteria incarnate. There is no easy answer, and I give the president the room to make a mistake without condemning his whole presidency and assuming that his whole personality is corrupt because he’s not acting in a way that is ideal.

  4. This is bullshit. Let them go. Once they do something worthy of arresting them, arrest them and try them . We DO NOT preemptively dole out justice like we do wars. I guess it will be our own fault if they go on to commit horrible crimes against us, we did that to them (tortured), but until they do, where are the choices that make them human beings? Where does the preemptive laws start and stop? Will thought crimes follow? I guess these are things that should have been preemptively thought of before the actions were carried out, hm?

  5. Blue,

    let’s assume, for the sake of argument, that 9/11 was an inside job, and that arabs/muslims are the designated scapegoats.

    Little to no forensic evidence was collected at the scenes of the crimes, which makes a successful prosecution impossible.

    Under these circumstances, once the designated scapegoats have been detained, it is impossible, even counter productive, to charge and try them for the crimes. A trial would expose the lack of investigation which would lead to questions the government does not want to answer.

    Torture, on the other hand, produces confessions and statements implicating others. Bush’s Military Commissions were empowered to convict people based on such “classified” evidence. But Bush’s term ran out before such convictions were handed down, and Obama doesn’t want to convict someone based on torture-induced evidence.

    However, unable to admit the lie underlying the events of 9/11, the government has but one solution left: indefinite detention.

  6. IMHO, the first thing that President Obama needs to do is recognize that he is the 44th President of the United States, not the 43rd president of the United States, George W. Bush. In other words, Obama did not do the things that Bush did. So he should not be held accountable for doing those illegal things that Bush did.

    Second, I am not following their logic, at least as far as what they’ve laid out is concerned. They say they can’t try these 90 people because some of them, or the witnesses against them, have been totured (whether or not they are willing to use that word.) I, like Dick Cheney, say, “So?” What has that got to do with anything? If these 90 people are, in fact, guilty of a crime (whether it was involvement wi the USS Cole bombing or some other event), then evidence should exist which was collected prior to that person’s capture. If they had a solid case against them in the first place, then no testimony need be admitted about what happened while they were in detention, as it would be irrelevant. (Did the guy really help blow up the USS Cole? Then what would his treatment at GTMO this century have to do with the crime he committed last century?)

    If the only concern the administration has is that witnesses called to testify might claim under oath (as if that matters any more) that they were tortured, then that is NOT a reason to not try these 90 people. It is completely irrelevant to the crime which they supposedly committed. If trials might reveal crimes committed by the Bush Administration, I do not understand why they are not allowed to continue and the facts allowed to be brought out. Why protect Bush? We already know that the Office of the President did not have the authority to do the things Bush did, so you’re not really protecting any powers that Bush grabbed, since the president wasn’t allowed to have them in the first place.

    So have the trials, let the process go through. Let the accused be acquited, possbily even have their charges dropped. Let them loose. Follow them. Watch the places they go, the people they see. If they are truly innocent (a possibility few in the administration want to consider), then they may just try to go back to their old lives. If they are guilty, then I suspect it won’t be long before they do something that justifies arresting them (for conspiracy). Just don’t harm a hair on their heads when you pick them up the second time.

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