‘Getting Tough’, All Over Again

In spite of what you’ve heard before, there isn’t any one ‘third rail’ in politics. If social security reform is the partisan lighting rod du jour, then immigration reform is a close second. Moreover, if Tom Barry’s piece in the November issue of the Review is any indication, it may well be gaining. Writing about a little-known area of law he calls ‘criminal-immigration’ whereby immigrants – legal and otherwise, convicted of non-violent crimes and possessing legal family members in the US – are sentenced to jail time in so-called ‘public-private prisons’ before their inevitable deportation. Part of a ‘get tough on crime’ mantra coming out of the Bush administration – and one the Obama White House has been reluctant to modify in the midst of an already thorny healthcare battle – these newly rebranded ‘criminal-aliens’ face sentences lasting anywhere from a few days to several years before deportation, thus effectively punishing offenders twice for the same crime. So much for the Fifth Amendment. Read the rest of this entry »

Terror, Torture, the President, and the Past

Today, President Obama attempted a forceful reply to critics on both the left and the right for his policies on detention and torture. In a speech at the National Archives, in a room redolent with the iconography of liberty and rights, Obama attacked the Bush administration’s “ad hoc” legal approach to the detention and treatment of terrorism suspects. However redolent Obama’s speech was with the fragrance of American founding values, the president emphasized one overall – the consistency inherent in the idea of the “rule of law”.

In BR’s January/February issue, David Cole grappled with the same question – and reached a remarkably similar conclusion. Detention without trial, Cole argued, was not only legal, but necessary. Many detainees could not be brought to trial in the U.S. under international law. What they could be afforded, he claimed, was some modicum of due process – proceedings to clarify whether they had actually been members of Al-Qaeda or the Taliban, for example. “Enhanced interrogation techniques,” moreover, would be firmly out of the question. Above all, Cole wrote, “Guantánamo is a black mark because of this resistance to law and refusal to recognize the basic human dignity of the detainees. If we are to fix the problem, we need not abandon military detention, but we must subject it to the rule of law.”

Still, Cole endorses a legally shaky principle of detention without trial as a “preventative” measure, meant to prevent strongly suspected terrorists from reengaging in violence. According to a recent New York Times article, one in seven former detainees returns to terrorism after release.

International humanitarian law affords Cole – and Obama – more flexibility with the Guantánamo detainees than they would have for domestic terror suspects. But human rights groups have been critical of ideas like these, which appear to represent an intermediary step between the “ad hoc” policies of the Bush years and a doctrinaire approach to detention that would essentially follow an established legal order — whether domestic or international. Leaks from a meeting between representatives from several leading human rights organizations and Obama indicate that they now see little difference between his policies and those of George W. Bush.

Lurking behind these debates are several definitional problems.

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