Lifetime terror detentions?

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Apparently, the Pentagon and CIA want to have permanent detention for suspected terrorists without trial:
Administration officials are preparing long-range plans for indefinitely imprisoning suspected terrorists whom they do not want to set free or turn over to courts in the United States or other countries, according to intelligence, defense and diplomatic officials.

The Pentagon and the CIA have asked the White House to decide on a more permanent approach for potentially lifetime detentions, including for hundreds of people now in military and CIA custody whom the government does not have enough evidence to charge in courts. The outcome of the review, which also involves the State Department, would also affect those expected to be captured in the course of future counterterrorism operations.

So, exactly what controls are we going to have on this? We're just going to let the CIA pick up random people and hold them indefinitely? I'm not naive enough to think we never do that in extreme situations, but it's now going to be official policy?

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15 Comments

Uh, we're not talking about random people here, Eric--we're talking about foreign nationals captured during anti-terrorist operations abroad. The obvious thing to do with them, in fact, would be to hand them over to the tender mercies of a friendly government with a claim on them--such as Afghanistan, where all, or almost all, of the ones currently in custody were originally detained. That would likely be worse both for the CIA (who might lose at-will access to them for interrogation purposes) and for them (assuming, as I do, that an Afghan prison is an even worse fate than a CIA prison). Hence, I'd think you'd be on the same side as the CIA on this one, hoping that they can figure out a way to keep some control over what happens to these guys.

It's not at all clear that we're solely talking about foreign nationals captured abroad. Certainly, the US government has designated at least one American citizen (Jose Padilla) captured on American soil as an enemy combatant and attempted to hold him more or less indefinitely.

In any case, absent US intervention, it's not clear that the "friendly government" would have any particular reason to hold many of these people. It's true that I don't consider subcontracting their imprisonment to be superior, but I think you're ignoring the obvious alternative: letting them go, on the premise that if you don't have enough evidence to meet even the tribunal standard they might actually be innocent.

Well, I can understand why you'd be concerned about US citizens being detained indefinitely without trial. But out of the hundreds of detainees we're talking about, only two (as far as I know) are US citizens. I'll happily recognize that you have a point about those, if you'll concede my point on the rest.



As for whether Afghanistan would hold these people prisoner if given custody over them, I'm quite confident that even if the Afghan government didn't have its own reasons for holding them, the fact that the US considered them worth holding would be sufficient.



And what you call the "obvious alternative"--freeing the detainees--is obvious to you, because you're a libertarian blogger in Palo Alto with a classic American/technerd antinomian streak, and your top priority is to contstrain (I might say, "hamstring") the government as much as possible. If you were a CIA bureaucrat, though, your top priority would be protecting Americans from terrorists, and the obvious alternative to holding the detainees wouldn't be letting them go, but rather finding someone to hold them for you. In practice, that's the choice we're considering here.



In fact, even in principle--as I've said before--the CIA's priorities strike me as far more sensible than yours. And bear in mind that I say this as a non-US citizen, who happens to worry more about news like this than about the CIA arresting me tomorrow and detaining me without trial.

I totally agree that the Afghan government would hold them--they're a US client state and we indicated we want them to. That's what I meant earlier by "absent US intervention". Howeer, given, for instance, Saudi Arabia's behavior so far, it's not at all clear to me that they would be that interested in holding arbitrary people that we happen to suspect were terrorists unless we told them we cared.


That said, I absolutely agree that the CIA, if left to its own devices, will find some way to hold these people, most likely by rendering them to said aforementioned client states. I'm sure that left to their own devices they would do lots of things I don't approve of, such as torturing prisoners. That's precisely why the intelligence community needs oversight.


You're certainly entitled to your own priorities, I suppose, but I must say I find them rather puzzling. Historically speaking, vastly more people have been hauled away without trial by secret police than murdered by terrorists. You can, of course, argue that this wouldn't happen in the US, but I tend to think the Japanese experience in WWII suggests rather differently.

I think you missed my point about what the CIA would do. Returning the Guantanamo detainees to Afghanistan or other allied countries would be the obvious alternative for the CIA because turning detainees over to the country in which they were detained, or from which they came, or of which they're citizens, is a routine action that's performed all the time, as a part of international law enforcement cooperation. (Two examples are extradition and deportation.) If you're really saying that it's one of those "things [you] don't approve of", then the Guantanamo detainees are the very least (and quite possibly the very least deserving) of your worries.



As for your "historical" argument--well, I hope you won't take it personally if I say that I think it's just plain silly. Historically speaking, vastly more people have died of smallpox than have been hauled away by the secret police. Does that mean that I should value the availability of smallpox vaccines more highly than civil liberties? Is it time to start interning pharmaceutical employees and forcing them to produce smallpox vaccine in government "laboratory camps"?



The more pertinent question, surely, is what's the more pressing threat to me today, or later in my life, not what might have been the biggest threat had I lived at some time in the distant past. And do you seriously believe that today, the CIA is a bigger threat to me--a non-citizen, remember--than Al Qaeda and its terrorist allies?

The British Government tried something like this for dealing with terrorism in Northern Ireland in the '70s. "Internment" of people believed to be terrorist leaders, with no legal process associated with it.

The result was a substantial increase in terrorism, culminating in the Brighton hotel bombing which nearly killed the entire Thatcher government.

By contrast, the combination of less brutal measures and reaching out to moderates by Blair has stopped terrorism and is on the verge of ending the 300-year conflict in Ireland for good.

Injustice incites terrorism. Holding innocents without trial is injustice.

Dan said:
> If you were a CIA bureaucrat, though, your top
>priority would be protecting Americans from
>terrorists...

I think that's a bit optimistic. The CIA bureaucrat's top priority is probably keeping his job, though he'd surely like to avoid having any terrorist attacks occur, too. But if he's protecting his job, he has some kind-of ugly incentives: He will be *really* reluctant to let anyone in custody out, even with no evidence against them, because doing that exposes him to blame if that person then blows up a plane or something. His job performance may be rated partly on how many terrorists he detains, and will surely be rated more on visible things like that than on how well he's protecting Americans from terrorist attacks.

That seems to me to argue very strongly for oversight, if only to prevent the most extreme cases of mistreatment and injustice.

--John

Dan,

No, what I'm saying is that if you deport Joe Suspected Terrorist back to Saudi Arabia, absent instructions from the US, there's a good chance they'll just let him go. What I object to is rendering people to other states with fairly clear instructions that they detain them and probably torture them. That's no better than doing it ourselves.


You'll forgive me if I say that I find your smallpox argument amazingly silly. It's certainly true that more people have died of smallpox than of being hauled away by the secret police and this certainly does suggest that it might be wise to arrange for the capability to vaccinate our population against smallpox. However, here in the United States we have this wonderful invention called the "market" in which the government can "buy" smallpox vaccine without having to resort to interning pharmaceutical employees. Indeed, in that vein you might consider whether it's possible to provide security without interning people without trial.


You write:
"And do you seriously believe that today, the CIA is a bigger threat to me--a non-citizen, remember--than Al Qaeda and its terrorist allies."


To you? No. You don't happen to be a member of the particular ethnic group which is suspect this time around. Is that what you meant?

Peter: Let's just say that I don't agree in the slightest with your version of the history of IRA terrorism. According to a recent highly-regarded book on the subject, it was the capture of a large boatload of IRA-bound munitions from Lybia in the eighties, as well as other successful anti-IRA operations around that time, that convinced Gerry Adams that terrorism wasn't working, and that negotiation would be a better strategy. He eventually convinced his IRA colleagues (possibly by ratting on some of the more recalcitrant ones) to embrace his approach. (And I should add that we still don't yet know whether the IRA's renunciation of terrorism is permanent, or just a PLO-style tactical lull.)



No, injustice doesn't, in general, incite terrorism. Terrorists themselves obviously have no interest in justice, or they wouldn't be terrorists. If they happen to use some circumstance that some people find unjust as an excuse, then it's just that--an excuse. Some terrorists are after power, others money and status, others just the blood. But they're certainly not after justice.



John: I agree that no government agency, including the CIA, should be without oversight. I'm simply suggesting that the measures the CIA is planning with respect to the Guantanamo detainees are most likely kinder to them than what normal, routine procedures would have dictated in the past.



Eric: There's no need for the US government to give explicit instructions to these foreign countries to hold the detainees indefinitely. They can simply inform the authorities there, in completely normal, routine fashion, of everything they know about them--that they were captured in Afghanistan during operations against the Taliban and Al Qaeda, and so on. I would expect that to be more than sufficient to ensure their rough treatment. (Actually, I can imagine the Saudis electing not to keep them, after all--but that's because the Saudis are frighteningly ambivalent about Islamist terrorism, not because they'd have any qualms about indefinite detention, or worse.)



I'm glad you found my smallpox argument silly--it was meant to be, in imitation of your argument. Apparently, we both agree that it's foolish to get so worked up about minor, preventable threats that we take unwarranted, extreme measures when more ordinary, routine ones are widely accepted and perfectly sufficent. So no doubt you'll agree that the traditional method of dealing with such detainees--handing them over to other countries that have a claim on them--will do just fine. Or perhaps you might want to protect America's, and the detainees', interests a little more than that--by embarking on the CIA's current proposed course of action.



As for why I'm not concerned about the CIA detaining me, it's because I live in the US, and never travel to places where the CIA is busy attempting to round up terrorists. Of course, if I did travel to such a place, my risk of being detained by the CIA would rise somewhat. Then again, my risk of being killed by terrorists in those places would rise even more.



But thanks anyway for the gratuitous imputation of racism--I appreciate it in the spirit in which it was intended (mindless argumentativeness, rather than actual malice).

You're right that there's no need to give explicit instructions. A simple hint is quite sufficient. And without that hint, the governments may or may not detain the people, as I indicated about Saudi Arabia.


As for the smallpox argument, you've got it backward. The "unwarranted extreme measures" in question are (in both cases) the indefinite detention of people without trial when less invasive measures would most likely do the job.


> But thanks anyway for the gratuitous imputation of racism--I appreciate it in the spirit in which it was intended (mindless argumentativeness, rather than actual malice).


I never imputed any such thing. What I implied, in point of fact, was selfishness--that you weren't concerned about the abuse of other people when it was fairly clear you weren't going to be one of them. Given your repeated insistence that you personally weren't at risk of being rounded up, that seems to me to be a wholly reasonable comment. Frankly, given your repeated imputation of various unseemly motives to me, I'm surprised to find you so touchy.

Eric, I understand that the measures we're discussing--the US government telling foreign governments everything they know about the people they are handing over into those foreign governments' custody--is repugnant to you. (Why it's repugnant to you, I don't really understand, but I'll put that aside for a moment.)



What I can't understand is why you feel entitled to describe these measures as "extreme" and "unwarranted", when in fact they're completely normal and routine. Do you believe that it's "extreme" and "unwarranted" for the government to hand over the information it's gathered on, say, fugitives wanted in other countries, or people trying to enter the country illegally, or people who have violated the terms of their visas, whom it hands over to foreign countries that don't necessarily offer all the Constitutional protections mandated by the current US Supreme Court? What, then, makes the Guantanamo detainees worthy of considerably more protection than these cases?



(By the way, there are Canadians who are deeply opposed to the idea of extraditing accused criminals to the US, because of the death penalty and other alleged American violations of civil liberties principles. Fortunately, most Canadians recognize that this policy would be a complete disaster for Canada, which would immediately become a haven for the very worst American fugitives. It would be ironic indeed if America were to make the mistake that Canada is avoiding, becoming as a result the destination of choice for Islamist terrorists.)

Dan,

There's a distinction you're failing to make between people who are actually wanted in some foreign country and people who are being held primarily because the US government asked the foreign country to do so. You keep suggesting that the foreign countries are doing so on their own merely because we've made them aware of the facts, but that's not really the case. Here's the relevant section of the WaPo article:


One approach used by the CIA has been to transfer captives it picks up abroad to third countries willing to hold them indefinitely and without public proceedings. The transfers, called "renditions," depend on arrangements between the United States and other countries, such as Egypt, Jordan and Afghanistan, that agree to have local security services hold certain terror suspects in their facilities for interrogation by CIA and foreign liaison officers.


What's really going on is that the US government is signalling (whether implicitly or explicitly) that we want some client state to hold this person for us rather than for their own purposes. It's that subcontracting out that I object to.

Eric, I don't think the distinction you're making is as clear-cut as you suggest. I doubt strongly that the US would simply "subcontract" out the imprisonment of the detainees to arbitrary countries for cash or favors. If nothing else, countries that are simply renting out their prisons to the US would likely have relatively weak incentives not to be lax in their security arrangements.



In fact, the countries listed, Egypt Jordan and Afghanistan (not the first countries an American might choose purely for cheap, reliable imprisonment services), each have their own very compelling reasons for combatting radical Islamist terrorism. That makes them very motivated, not only to cooperate with the US, but also to do their own part in keeping the suspects locked up and in obtaining information from them. In other words, this arrangement is a lot more like the US shipping wanted terrorist suspects to countries that want to jail them--while still retaining American access to them--than like contracting out imprisonment services to them.



Of course, the Post article you cite is cleverly written so as to be ambiguous on this point. I see this all the time--newspapers spinning a story for maximum scandalizing effect, when what is going on is in fact much more boring than the article suggests. "CIA considering deporting suspects to Middle Eastern countries under cooperation agreement" certainly sounds much less exciting than "CIA considering subcontracting out their interrogations-under-torture to third-world countries", but I don't believe it tells the real story.



(One correction: I've been referring to the CIA detainees as the "Guantanamo detainees". In fact, the Guantanamo detainees are being held by the military. The CIA detainees--no more than a few dozen in total, including top Al Qaeda catches like Khalid Sheikh Mohammed and Ramzi Binalshibh--are being held in various CIA facilities around the globe. Few countries need to be bribed to keep these guys from going free--the hard part would be ensuring that the governments in question are actually able to guarantee that they stay locked up.)

Dan, there are two arguments you might be making, and I'm not sure which is your actual argument -

1) We should allow the CIA to hold people indefinitely in the USA, because if we don't they'll just do it overseas

2) We should allow the CIA to hold people indefinitely, because really it's no big deal if they do.

Please explain which point you're trying to make.

Actually, I agree with both--although expressed in reasonable, qualified, non-ridiculing terms. Under certain circumstances, the CIA should be allowed to detain certain classes of individual--non-citizen enemy non-combatants captured abroad and reasonably suspected to be active members of terrorist organizations--indefinitely without trial, if deemed necessary to disrupt or gain intelligence about ongoing terrorist activity. While unpleasant, such a measure is less bad than allowing terrorists to go free to continue their terrorist activities. Moreover, it's also less bad than taking the routine measure of handing them over to foreign authorities, who will then not only treat them far worse than the CIA will, but will also reduce the amount of valuable intelligence that can be gleaned from them.



It's strange--proponents of my position are routinely accused of painting the issue with a broad, simplistic, rhetorically crude brush--"are we going to coddle murderous terrorists, allowing them to perpetrate another 9/11 just so that we can satisfy a bunch of lawyers that their 'rights' were respected?". But I really haven't heard anything to justify the accusation. What I have heard, on the other hand--from you, Bram, from Eric, and from just about everyone I've debated on this topic--is exactly this sort of deliberate, crude blurring of the issue, but from the other side--"[They think] we should allow the CIA to hold people indefinitely, because really it's no big deal if they do." Frankly, it doesn't look any less creditable emanating from the opposite direction.

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