Cognitive dissonance and detention without trial


Now that Obama has signalled that he will sign the National Defense Authorization Act, US citizens have no legal rights that can’t be over-ridden by miltary or presidential fiat. Anyone accused of being a terrorist linked to Al Qaeda can be arrested, shipped overseas and held indefinitely without trial, or alternatively tried by military commissions.[1] And, if arrest isn’t feasible or convenient then (at least outside the US), they can be hunted down and assassinated, with or without warning.

On the face of it, that makes the US a scary place to live. But, as a matter of everyday reality, most Americans aren’t scared at all.[2] Should they be? 

There is a problem of cognitive dissonance here. The powers claimed by the Bush and Obama Administrations have only been used against US citizens on a handful of occasions and always against people who were, at least, supporters of Islamist terror groups. As far as everyday experience is concerned, the ratification of those powers by Congress makes no difference.


Is this situation stable, or is the US on a slippery slope? If the law remains unchanged, expansion of its scope is virtually inevitable. The Republicans have long demanded the end of ordinary criminal trials for those accused of involvement in Islamist terrorism and, sooner or later, they will be in a position to enforce that demand. As with Guantanamo Bay, that’s a step that will prove virtually impossible to reverse.


As Glenn Greenwald has pointed out, the system as applied so far has a multi-tiered approach to a guaranteed outcome. If the evidence against a suspect is adequate and legally admissible suspects, can be tried and convicted in civilian courts. If it’s dubious but enough to pass muster in a military tribunal they can be tried and convicted there. If there’s no admissible evidence at all, they can can be held without trial. Whichever route is chosen, suspects, once arrested, need never be released.



The next steps would probably involve:


* removing (or reading down to insignificance) the requirement for a link to the 2001 attacks, and using the detention power for broader groups that might be classed as terrorist. It’s easy to imagine the right using this against leftwing protest groups. On the other hand, once the new laws are fully accepted, it’s worth observing that there are quite a few actual terrorists on the political right, and plenty more people who might be accused of giving them material . A particularly alarming possibility, since it would massively expand the potential target group is the application of the law to alleged ‘narcoterrorists’, some of whom are supposedly linked to Hezbollar.


* abandoning any pretense of adhering to rules of evidence, and allowing convictions based on hearsay, entrapment and so on. Existing practice has already gone a fair way in this direction


After that, the road is open to the unfettered use of these powers. Even if the numbers actually detained were relatively modest (in the thousands, say) the threat would be available in all sorts of contexts, going well beyond law enforcement. 


The process would presumably move more slowly if the Dems retained power. On the other hand, the longer the laws remain on the books with bipartisan support, the harder it will be to challenge their inevitable use.


Is there any prospect of a reversal of this trend? Based on past experience, this won’t happen simply because of principled objections, so any reaction will only come when these powers are actually abused. And given the abuses to which the US public (and even more the US elite) are already inured, it would take something quite extreme – either mass detention of people who are clearly innocent or the use of the law against members of the elite, leading the rest to take alarm.


Perhaps I’m being overdramatic here. There have, after all, only been a handful of cases where these powers have been asserted, and I don’t detect a lot of enthusiasm for a police state among ordinary Americans. So, anyone who would like to cheer up my festivities is welcome to show me I’m wrong about this.



fn1. I’m aware that the part of the legislation making detention mandatory includes anexemption for US citizens, and that the part relating to Al Qaeda linked terrorism purports merely to endorse the status quo, which is left undefined. But the fact that Congress rejected amendments that would have explicitly excluded US citizens, and that the Bush Administration succeeded in holding US citizens in military custody for years make it quite unlikely that the courts would intervene to free alleged terrorists from military detention claimed as necessary by the President.

fn2. As a  now-departed visiting non-citizen  the change of rules makes no difference to me – the US has long claimed an absolute right to seize or kill anyone, other than a US citizen, anywhere in the world, and US courts have repeatedly denied redress to those claiming wrongful detention and torture following seizure in the US or elsewhere.  That didn’t stop me coming to the US, nor has the loss of any marginal protection I might gain from being in the US deterred me from going home. And, while in the US, I haven’t worried about what I said or who I talked to, despite the absence of any legal protections. So, I have just the same cognitive dissonance as everyone else.









Posted via email from John’s posterous

22 thoughts on “Cognitive dissonance and detention without trial

  1. I think the comma in “If the evidence against a suspect is adequate and legally admissible suspects, can be tried and convicted in civilian courts.” is a word too late.

    I haven’t been to the US for a long time, but reading Reason’s blog leads me to think that the war on drugs is more of a threat in practice, because of mistaken ‘no-knock’ raids and the general militarisation of law enforcement. There also seems to be a fair bit of misconduct by prosecutors which threatens innocent people, although I’ve really no idea if the situation is worse there than in Australia.

  2. I am interested in the comparison between the USA and, as one example, Hungary. In Hungary, the revived Arrow Cross movement has demagogues who want to instal a totalitarian government but lacks the apparatus. In the USA, all the apparatus is ready. Only a popular demagogue is lacking.

  3. In the US they are making do with not so popular demagogues. But, unlike the ordinary totalitarian government, where the people actually see the person who is in charge, in the smoke and mirrors that has become the US, all they see is a parade of increasingly interchangeable Presidents who have great power as long as they do what is expected and don’t step the slightest out of line.

  4. Things like the “National Defense Authorization Act” make what casual consideration of some of the scarier conspiracy theories would instantly dismiss, like, for example, that the neocons either created or allowed to happen the 9/11 event to further their well documented intention to reorganise the state with the Patriot Act (which was already drafted before the event and hence ready for a rapid passage through Congress). Too many Americans see the US as the modern Roman empire and believe that what was right for Rome is right for the US. The neocons want the US to have an eternal hegemony over the rest of the world. As that is not going to happen lets hope they do take it lying down.

  5. It appears that the Orwellian dystopian prediction of large totalitarian blocks is being borne out. The difference is that it comes to pass in about 2014 rather than 1984 which was an anagram for 1948 in any case.

    Combine the evidence of the decline of freedom and democracy (after a brief flowering) with the decline of resources, the destruction of the environment and the clear inability of homo sapiens to evolve as a moral species and we arrive at an inescapable conclusion.

    Civilization is a failed project. Hunter-gathering is the only viable niche for homo sapiens, that is, if extinction can be avoided.

  6. My nihilism about homo “sapiens” is logically supported by the facts. However, let’s retreat a little and ask a question. With respect to the sentence, “US citizens have no legal rights that can’t be over-ridden by miltary or presidential fiat.”, isn’t this law unconstitutional?

  7. @#7
    Always thought this was rather ridiculous. It’s proponents always seem to suppose that in the event of tyranny it will be THE PEOPLE vs THE GOVERNMENT. But this is never how tyranny works. It is always, at least initially, populist and often accompanied by gangs of thugs such as the SA in Germany. Tyranny arises out of chaos, anything adding to the chaos will aid it. It will be whatever group or groups that aims to bring totalitarianism to the USA that will most benefit from arms being in ample supply among the citizenry. It is much better to keep instruments who’s only purpose is coercive controlled with institutional constraints.

    If for example it is largely just the army and specialist police units that own arms (as in Britain), then any use of them will be seen far and wide as an extraordinary circumstance, this makes the power hard to abuse. Whereas in the USA there are already plenty of “militia” groups and criminal gangs who own assault rifles. Since criminals and wingnuts have easy access to weapons, including sometimes heavy weapons, police also need them. In this situation the power afforded by guns is much easier to abuse, because they are used all the time rather than simply in special circumstances, and so their use is not widely reported.

  8. Having a bit of a snoop around I came across some interesting things.

    The $134million “Go Card” which, like so many other recent QLD things, just dropped from the sky unchallenged by our ‘opposition’ and unquestioned by our ‘media’ always has a very funny smell about it. This extraordinary dog of an idea comes to us thanks to a US company called “Cubic”.

    “Cubic” is a diverse business with a great deal of interest in ‘defense’ and ‘surveillance’. Without much fanfare, these RFID cards are well known to be traceable, are often connected directly to financial accounts and collect and use an uncertain amount of otherwise private information. They can also be tracked and at least once that I remember have been used by police to nab someone for something.

    It also appears that they frequently overcharge the unwary.

    Cubic also do a lot of military stuff. I came across this story from NZ from 2008:

    Back on topic, we are all in for some very nasty surprises thanks to the US (and increasingly Aust) determination that we must all give away our ‘rights and freedoms’ in order to save our ‘rights and freedoms’.

    The story is about an ex-Cubic NZ employee who the company didn’t like. He was also a busy peace activist etc.. The NZ ‘terrrst’ police ended up on his case and some very interesting things came out in the wash.

    Things like NDAA will definitely, if they haven’t already, be used against anyone speaking up against the power elite and status quo (eg: climate/environment activists, anti-war protests, “Occupy” etc…).

  9. This is also slightly on topic:

    Like the US Democrats, our ALP is probably more pro-gung-ho re: torture, illegal wars of aggression, killing civillians with flying robots, suppressing dissent etc….

    I cannot fathom why people still openly support the ALP. Surely any sense of decency would compel them to simply end the pain and support the LNP so they can just get on with it?

    Their version of “pragmatism” is simply a colourful acronym for “hypocrisy”.

  10. @nickj


    a) Their ‘arms’ are no match for their military’s arms.
    b) To engage in resistance, they’d need to understand the source and nature of their oppression. Most Americans (particularly in, er, gun-owning political demographics) have no real understanding of this whatsoever; a hopelessly compliant and uncritical news media bears a fair bit of the blame here, but the national mythology and national economic mythology are also not to be let off the hook here.

  11. @Megan

    Firstly, the rusted-ons. The Labor Party has achieved many great reforms and most people don’t actually think about politics or to be frank social morality a great deal.

    Secondly, the lack of alternatives. A lot of people are uncomfortable with where Labor are and are going, but don’t believe the Greens are capable of putting together coherent and defensible policy that copes with the nuances and contradictions of the real world. I think a new centre-left party would probably be received well (albeit not without some degree of cynicism).

  12. Dan,

    Obviously the ‘rusted ons’ are easily understood (goes for both duopoly parties).

    But I’d imagine them to be around 10%-15% of the electorate and roughly cancelling each other out.

    I was particularly questioning the thought process that a person who isn’t technically ‘rusted on’ applies when voting ALP but holding opinions (eg:) anti wars, pro humane treatment of refugees, pro environment, pro public ownership of services, non free-market fundamentalist, pro legal basics like presumption of innocence ‘habeus corpus’ freedom of speech right to representation etc..

    We know many of these people exist, they MUST know the ALP’s record on those things, they MUST know what Howard’s Gov did on those things and they MUST know that the ALP is as bad and often worse. So I still don’t get the argument “I know what they’re doing, but I can’t vote for anyone else”. It still doesn’t make sense to me how those people support/vote ALP.

  13. Megan,

    I’m one of those you describe – one who isn’t rusted on. I’ve found that I no can no longer differentiate between the two parties. Consequently, I’ve switched off as far as Australian politics is concerned. I care about every item you mentioned above, but feel that neither party is interested in anything but media-driven policy and pandering to growth at any cost. I was a Labor voter and quite a political animal during the Howard years…..disillusioned is putting it mildly.

  14. @Wooster


    Is that it? “I’ve switched off”!

    I read today that certain “intelligence” agencies use ‘persona management’ (by the way, ‘Cubic’ do a great line in that particular trade!!) to create what we used to call sock-puppets to argue that it’s all too hard and we mere citizens of the West really can’t and shouldn’t do anything to upset the status quo.

    People are starting to stand up in the boat, and they don’t care if it makes the boat rock.

    Never seen you around here before, Wooster. Welcome!

  15. @Megan

    Right – so who would they vote for, if for some reason (and I can think of many potential ones, despite being a Greens vote myself) the Greens won’t work for them?

  16. Dan,

    They would vote for someone else. That was my original point. I can’t fathom how they reconcile ALP support with the fact that the ALP is against just about all principles those voters hold.

    They could vote Green (despite the ‘hate’ media and both main parties’ disparagement – a gradually increasing number are doing that), they could vote independent.

    As an aside: I have a feeling (or a prediction) that the upcoming Qld state elections will see the ALP hurled out in a NSW-under-Kenealy-type rout thanks to their contempt for the electorate (eg: Traveston, fluoride, CSG, Gladstone harbour, asset give-aways etc..). The ‘Katter’ party takes a large chunk of the fleeing votes, the LNP have to form government with the Katters and some Independents and maybe even a Green or two and Newman narrowly misses out on Ashgrove. That may be more wishful thinking than analysis but I believe the ALP is in for a pounding.

  17. Megan,

    Thanks for the welcome.

    Well, I don’t quite know what to do. Who do you vote for in Australia that is capable of making a difference to the current generic and overarching ideology of the West?
    I’ve been having my say on a certain opinion site that is for the most part inhabited by right-wingers and climate change denialists. I consider I put up a good fight for my side of the story, but in the end it’s all blather and bluster mingled with a little ego-polishing.

    Do you reckon they’ll be some serious reorganisation of priorities when the eurozone goes right off its trolley? I’m thinking that any real change in political exigencies will be forcibly adopted in reaction to the decline of American and European influence.

  18. John, sorry to play the pedant, but…
    “Hezbollar” ?
    Surely you meant to type “Hezbollah”.
    Never mind. Love your blog.

  19. Thanks John,
    As a follower of the debate on Australia’s own anti-terrorism laws I should point out that the de jure (as opposed to de facto) situation is arguably not much better here.

    From George Williams:
    “Australia’s anti-terrorism regime runs to hundreds of pages. It extends to sedition offences that imprison people for their words rather than their actions, control orders that permit house arrest without trial, laws that allow the secret surveillance of innocent people and ASIO being able to have non-suspects detained for up to a week to gather intelligence. These powers can often be exercised in secret, and even where mistakes are made or the power is misused, this cannot always be reported in the media.”

    Williams argues that the laws, “would never have been allowed to pass in the US”.

    We saw with Howard’s weak response to the illegal detention of Australian citizens in Guantanamo Bay (Hicks and Habib) that Australian governments are even poorer than the UK at protecting the rights of our own citizens abroad.

    I think the cognitive dissonance extends to our own country.

  20. Megan, if you’re interested in my belated answer to your question, it seems obvious to me that people who find that the ALP is against all the principles they hold wouldn’t vote for the ALP. People who do vote for the ALP must not be people who find that the ALP is against all the principles they hold. I don’t see where the puzzle comes in.

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