Saturday, May 23, 2009

Orwellianism of the day: "Preventive Detention"

President Obama continues down the Cheneyite path with a new proposal for "preventive detention" of people he deems dangerous or threatening. This man used to be a Con Law professor. I went to law school too, and one of the things they taught me there -- though they didn't have to, because I had already learned it in middle school civics class -- is that the bedrock of our country's criminal jurisprudence is the presumption of innocence; that is, a person is presumed to be innocent until that person is proven to be guilty in a court of law.

But take a look at this passage from Obama's speech on Thursday and tell me how it can be squared with that principle:
[T]here 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.
We are talking about people who "pose a threat" to our security. People who have "expressed their allegiance" to bin Laden (or presumably to any other person or ideology that may be in disfavor at any given time). People who "want to kill Americans". There are a lot of people who fall into these categories, both inside and outside the United States. Maybe more, maybe less, depending on who, exactly, is making these determinations.

And notice that these are people who "cannot be prosecuted". Why can't they be prosecuted? Well, one reason might be that they haven't actually done anything illegal. Having an "intent" to do harm is not a crime. "Wanting" to commit a crime is not a crime. Being "trained" to commit a crime is not, ordinarily, a crime. Unless we are talking about thoughtcrime, which didn't used to be an actual crime for which you could be punished -- and make no mistake, depriving a person of his or her liberty permanently or for extended periods of time is a severe punishment, whether or not that time is spent, for example, subjected to extreme heat or cold, folded into a small dark box, or standing with arms shackled to the ceiling.

And let's not forget that there are very good reasons why we have a legal system with such things as "habeas corpus" and "rights of the accused" and "trials". Anglo-Americans long ago recognized the importance of this. The English knew it at least as early as 1215. American colonists knew it all along, but formally (and finally, they thought) sanctified it in 1791.

But these, the seminal events in Anglo-American jurisprudence, happened a long time ago. Before there were dangerous terrorists, or scary threatening people who intended to do harm. So maybe, as Obama intends, it is time to do away with these inconvenient safeguards, which only serve to get in the way of efficient defending us from thoughtcriminals. This break with the wisdom and traditions handed down to us over the centuries may be hard for some of us to swallow, at least for a time, but persnickety legalists and their insistence on abstractions like "rights" and "due process" can be rather easily counteracted by accompanying such policies with soaring rhetoric in praise of the same wisdom and traditions we are simulatenously doing away with -- a neat tactic for making sense of the world otherwise known as doublethink.

I leave you with IOZ:
... Cheney is nonetheless straightforward in his advocacy of a military exemption to the laws and statutes of the United States. Obama on the other hand is arguing that we must forgo legality in pursuit of security while giving the convincing appearance that we are not doing precisely that. We should abandon the legal structures that have governed the trial and prosecution of wrongdoing for over half a thousand years now, but we must do so while making glorious noise about American principles and what America stands for and all that.


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