in Kulturkampf

Indefinite Detention

A dialectic has taken hold on the progressive conversation, and I do not like it. The digital left keeps using the words “indefinite detention” because they sound awful, which they are. Indefinite detention is not nice or kind or humane, but it was not invented for the “war on terror.” In fact, it has happened many times before 9/11. Behold: Americans held in indefinite detention.

America has held lots of indefinite detainees. At the end of World War II, there were about 400,000 German, Italian, and Japanese prisoners of war being held in the United States, with many more abroad. Prisoners are a fact of war, and in fact America has been engaged in a war since 2001. But that is finally starting to end, thank goodness.

War is not glorious. It is rotten, stinking, awful, and deadly — like Andersonville. The stakes are counted in blood and treasure, and they are always enormous. That is why the United States should not slip easily into war, ever, and any war the United States fights should be as brief as possible to incur the smallest possible stakes.

Victory is the only prize in war, and it comes at a huge cost. Any number of Civil War veterans suffered from debilitating memory or infirmity. Every time a Union rifleman aimed his rifle and pulled the trigger at Shiloh and Gettysburg and Chickamauga, he incurred the “targeted killing” of an American citizen. That is a horrifying experience at either end. There is no judicial appeal process with bullets and bayonets; likewise with IEDs and drone strikes.

The governing document for America’s current conflict (they’re not called wars anymore) is the AUMF, or Authorization for Use of Military Force. Congress passed AUMF as its constitutionally-appointed duty after the United States suffered its “Second Pearl Harbor.” AUMF instructs the President of the United States, whoever that might be,

to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The AUMF ends when al-Qaeda does. Of course, AQ is not like Germany in World War II, or the Confederacy. The “war on terror” — a term the current president spurns — is about the destruction of the shadowy non-state organization. For a little while, this goal seemed within reach. The United States collected many prisoners in removing the AQ safe haven in Afghanistan, but of course we know what happened afterwards.

The Bush administration chose to pursue the PNAC agenda in Iraq, ignoring the remains of AQ in Central Asia and allowing the organization to metastasize elsewhere. Troop levels in Afghanistan peaked at 20,000 early in 2002. Having received war powers from Congress, the Bushies showed no desire to finish the conflict and so end their assumption of powers. America’s longest war continued for seven years, with no end in sight, until a new administration determined to force an endgame.

The “indefinite” part of wartime detention comes from the uncertainty of war. Wars do not offer clear ending dates. Only in victory or a negotiated peace do detentions become definite:

The US has agreed in principle to release high-ranking Taliban officials from Guantánamo Bay in return for the Afghan insurgents’ agreement to open a political office for peace negotiations in Qatar, the Guardian has learned.


“This is at last a real process,” (Michael Semple, a former EU envoy in Afghanistan), now at Harvard University, said. “There is a long list of things we don’t have and there has been no progress on substantive issues. But now there is a certain amount of momentum. Every discussion over the past couple of years has been heavy on western enthusiasm with nothing substantial from the other side.”

This time, he said, it was clear that the top Taliban council – including its reclusive leader, Mullah Omar – was on board with the proposal. In return, Semple said he thought the release of a few prisoners from Guantánamo Bay was politically feasible for the Obama administration, even in an election year.

“The prospect of ending a costly war in Afghanistan is sufficiently attractive for the Obama administration to move forward with it,” Semple said. (Emphasis mine)

Since Obama took office, Congress has consistently blocked any move to process prisoners out of military custody:

In 2009, however, Congress started to limit that discretion, largely in response to Obama’s plan to close Guantanamo.  Those limitations initially took the form of restrictions on the president’s authority to release Guantanamo detainees into the United States.  Before long, Congress had prohibited the president from using military funds to transfer a Guantanamo detainee to the United States for any purpose, including for federal prosecution. The ban on Article III prosecutions was sparked by the administration’s decision to try Khalid Sheikh Mohammed and his 9/11 co-conspirators in federal court (a decision the administration abandoned in the face of mounting political and public opposition).  The Article III-transfer-ban effectively mandated that Guantanamo detainees who remained in U.S. custody would remain in military custody.  At the same time, Congress placed significant constraints on the president’s ability to transfer Guantanamo detainees to their home countries or to third countries by imposing burdensome certification requirements that were difficult to satisfy.

That’s from Jonathan Hafetz, a member of the National Security Project of the American Civil Liberties Union, writing about the president’s signature on the National Defense Authorization Act (NDAA). Contrary to the hype propounded by Glenn Greenwald, Marcy Wheeler, and other figures in the reactive online left, Hafetz offers analysis:

The Obama administration has demonstrated its willingness to resist measures that would limit its use of all available tools to incapacitate terrorism suspects.  It has proven far less willing to expend political capital on closing Guantanamo, once a centerpiece of its efforts to restore the rule of law. The NDAA provides a small window of opportunity to breath a modicum of life into closure.   It permits the Defense Secretary to waive certification requirements for transferring Guantanamo detainees to other countries–requirements that, along with the Obama administration’s own suspension of repatriations to Yemen, have brought detainee transfers to a standstill. (Emphasis mine)

Bear in mind that prisoner transfers in a peace process are exactly what civil libertarians want a president to do, and until now they have always been the exclusive province of a commander-in-chief. It is only since Obama took office that Congress, specifically the neocons on the Senate Armed Services Committee, has inserted itself in executive powers. If anyone is being unconstitutional, it’s them.

All of this is quite aside from questions of prisoner handling. The first of the Geneva Conventions (which Bush Attorney General Gonzalez found “quaint”) was negotiated during the Civil War, which saw unmitigated horrors in prison camps on both sides. America’s ensuing commitment to humane handling of prisoners played a big role in the battlefield successes of the World Wars. So what happened with the “war on terror”?

There was never a reason to waterboard anyone, for example, and the Bush-era designation of “unlawful combatants” allowed them to pretend the enemy was a radically-new phenomenon that needed new rules to deal with, opening the door to abuse. Cheney’s friends on the Senate Armed Services Committee have worked very hard to make sure that door is never reopened for examination.

After so much effort to undefine these detentions, we have reason to hope the conditions of the AUMF are close to fulfillment. AQ is nearly crushed out in Central Asia; the Taliban is ready to throw them under a bus. A negotiated end to hostilities will allow American troop withdrawal from Afghanistan and the release of Taliban captives, defining their detention. And isn’t that what we want?

Adding: I’m not the only blogger on this story, either.

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  • Matt, good post and very good info.  Thank you.

  • Thanks for coming by!

  • Anonymous

    “American troop withdrawal from Afghanistan” won’t mean an end to war with Al Qaeda.

    That will never end.

    Unlike war with a nation, war with an organization is endless.   Anyone held until the end of the war with Al Qaeda will be held until he dies.

  • War with an organization lasts as long as the organization does. If you want to bring AQ detainees to trial, I’m on the same page — but first we have to get a Congress that won’t fight us on it. This one has, and will continue to do so.

  • Anonymous

    The US government will always be able to say that there is someone in the world who is a member of Al Qaeda, and therefore Al Qaeda still exists.

  • “The government” is not a monolithic entity, and neither is al-Qaeda. I say the president would like to finish wars; you say he wants endless war. I can point to his actions and describe a logical chain of events, statements, and developments leading towards a declaration that AQ has been reduced to nothing. OTOH, you have your fear that he’s exactly like Bush. 

    One of us will be proven correct, probably before Election Day ’12. Should it happen, resistance to ending the state of hostilities under AUMF will appear in Congress, not the White House. And then I’m sure you will still have an explanation for events that hinges on him being exactly like Bush and ignores the existence of Congress as the branch of government that actually writes legislation — the only war that won’t end, I predict, is yours.

  • I visit your site too infrequently, will have to see what I can do about that.  I like the way you think and write, of course :)

  • So, who do you believe?  The U.S. Congress held hostage by the GOP minority and anti-Obama liberals  (like yourself?) or reality? Pres. O is not a dictator…nor will he be, no matter what kind of rainbow unicorns you think he promised you. The truth is this:  Endless detention in the U.S. has always existed in wars, like it or not (as Matt so kindly pointed out). Pres. Obama is dealing with a shit sandwich left over from previous administrations (Bush, Clinton all in there, regardless of party).  Pres. Obama has done everything he can do within  the strictures of the Constitution to end these wars and bring terrorists to justice. You CHOOSE to judge him based on powers he DOES NOT HAVE NOR SHOULD EVEN ATTEMPT TO HAVE lest the precedent be set for other administrations, many of which will not be liberal administrations.

    Matt makes a damning and valid point against you, he says you “will still have an explanation for events that hinges on him being exactly like Bush and ignores the existence of Congress as the branch of government that actually writes legislation — the only war that won’t end, I predict, is yours.”

    And he is right…. your understanding of the President is off….he is a Constitutional scholar and he is trying his damndest (sp?) to not set a precedent that the GOP will take advantage of in future when they eventually win the White House back (and they will).  I know it’s a long game, but it is worth it.  If Pres. Obama is disingenuous as you claim then your perspective will win out in the history books.  I’m betting that he will be seen as a President who understood both the long term and short term effects of what he did while in office.  He wants to effect change but not in a way that the GOP can use it to their advantage when they have control.  That is a hellacious balance to keep.  

    It comes down to whether you believe he has good intentions or not.  I think Matt and I are in agreement that he has what’s best for the U.S. in mind and you do not.  Both of us, perhaps, need to ask ourselves why we think this.  In my case it is optimism and a careful reading of everything the President has said and done since seeking the Presidency in relation to the surrounding circumstances.  In yours, I don’ know.  I only know that you assume he is an agency against democracy as you would have it, so frighteningly like the Tea Party.  I know he isn’t perfect–no one is.  To expect of him, of all people, in this time, in this place…is almost absurd!  Do you understand why we question you?  We see the obstacles he faces as real and you see them as something to be brushed aside?  My final question to you is, “Do you want a President or a dictator?”  because you CANNOT have both.

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