Rachel is Wrong

I admit to being a Rachel Maddow fanboy. I love the way she giggles when dealing with subjects that cause Keith Olbermann to spin the outrage dial to 11.

But she can also get outraged, and sometimes for the wrong reasons, as on the clip above, where she and guests protest the President's plan for "prolonged detention," outlined in his Constitution Hall speech.

I expected to be highly critical of the President's talk. There are areas here where I disagree with him. But on the critical issue of the detainees, and torture, a clear understanding of what he actually said tells me he's right.

Briefly, on torture, there will be no special prosecutor appointed by the President because he can't create one. The issue goes into the hands of the Congress, which can do what it wants, and the Attorney General, who may prosecute at his discretion. He took neither off the table. He did not say the torturers and the torture regime will get off, despite the howls from the right (and their enablers in the media) that they should get just that.

More important, on the detainees. The President is working to put them into legal boxes. Some will be tried. Some will be released. And some, a relatively small number, go into this "prolonged detention" category. The evidence against them is tainted, no one else wants them, yet it's obvious from their own statements that, let loose, they would kill people.

To Maddow there is no choice but to let these people go because we don't have a case against them. To Maddow this is like the Tom Cruise character in "Minority Report," jailed for something he might do rather than what he has done. 

But anyone who has seen more than a season of Law & Order knows better. Every season there is at least one show where prosecutors face someone with a profound mental illness, often schizophrenia, who refuses to take their medication. They toss aside the thorazine, they commit a crime, then say "you can't try me I'm a mental patient." Sometimes they then go back on the thorazine. Sometimes they even try to defend themselves in court.

What the prosecutors always do in these cases is get a preventive detention order. The accused is either forced to take their medicine and stand trial, or they are committed to state care. That's what this "prolonged detention" amounts to.

Some people are innocent. Some people are guilty. Some people are deranged. You can't just release deranged people into the community. Oh, you say the terrorists are not insane? What do you call it when someone says they want to kill all Americans?  I don't call it sanity.

Everything the President said is consistent with existing law and precedent. Everything. Every decision he proposes to make is subject to judicial review and Congressional oversight. What he does can be overturned. That is the way the system is supposed to work, and the President will make sure it works that way on his watch.

My main concern is what happens after his watch. The Nixon precedent led to the torture regime, led to the politicization of justice, led to wars of choice that killed thousands, led to the concept of a unitary executive who can do anything without oversight. The Nixon precedent exists because Nixon was pardoned, and was never prosecuted for what he had done. 

If we fail to proceed against these defendants, if we say that war crimes are OK if the President authorizes them, then I guarantee that in my childrens' time, your childrens' time, we will have another President, someone not so kind, loving, and respectful of law as Vice President Cheney, who will take this precedent to its logical conclusion, and destroy American democracy once and for all, stealing elections until people give up on the process, jailing all those oppose him without due process, and really creating the Amerika we all fear.

That future must be stopped now. Investigations by the Congress, and prosecutions of the guilty, are the only way to stop it. They must proceed.

Thanks to President Obama, I believe they will proceed.