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Indefinite Detention - A Further UPDATE on Constitutional Issues Raised
To what extent can a President hold detainees indefinitely without straying into unconstitutional territory? This is the issue we have before us, given Obama's willingness to entertain holding some detainees in "prolonged detention" - if, as he asserts, they cannot be tried.
Having already laid out what seem to me to be the pertinent Constitutional issues in a previous blog, and having acknowledged rebuttals by PseudoCyAnts (see Update I), I draw your attention to further developments, which buttress my own arguments: a letter by Senator Feingold: and commentaries on that letter by emptywheel and Glenn Greenwald:
emptywheel has posted a link to Feingold's letter to Obama, expressing opposition to the idea of indefinite detention, as well as a warning against military tribunals.
This would seem to buttress my points as set forth in my previous blog. Wiggle room for PCA's views re a Geneva detainee status? (see Update 1 in the previous blog) Perhaps setting up a Constitutional conflict (between Geneva and the Bill of Rights), a conflict which is likely to end up in the courts, depending on how this plays out, depending on what "basis" the Obama administration tries to use as its means of "prolonged detention". Paging Dawn Johnsen! (Your presence is urgently requested at OLC, please.)
Like emptywheel, I maintain enormous gratitude for the stands Senator Feingold continues to take, when it comes to protecting civil rights in the face of their erosion, and when it comes to the need for sunlight where too much darkness has gathered.
Glenn Greenwald weighs in on the Feingold letter in similar vein:
As citizens, we have to make sure these public conversations continue!
Having already laid out what seem to me to be the pertinent Constitutional issues in a previous blog, and having acknowledged rebuttals by PseudoCyAnts (see Update I), I draw your attention to further developments, which buttress my own arguments: a letter by Senator Feingold: and commentaries on that letter by emptywheel and Glenn Greenwald:
emptywheel has posted a link to Feingold's letter to Obama, expressing opposition to the idea of indefinite detention, as well as a warning against military tribunals.
Feingold, Letter to Obama, (5/22/09) :"... any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. .... It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
... Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. ... worse those legal precedents would be effectively enshrined as acceptable in our system of justice..."
This would seem to buttress my points as set forth in my previous blog. Wiggle room for PCA's views re a Geneva detainee status? (see Update 1 in the previous blog) Perhaps setting up a Constitutional conflict (between Geneva and the Bill of Rights), a conflict which is likely to end up in the courts, depending on how this plays out, depending on what "basis" the Obama administration tries to use as its means of "prolonged detention". Paging Dawn Johnsen! (Your presence is urgently requested at OLC, please.)
Like emptywheel, I maintain enormous gratitude for the stands Senator Feingold continues to take, when it comes to protecting civil rights in the face of their erosion, and when it comes to the need for sunlight where too much darkness has gathered.
Glenn Greenwald weighs in on the Feingold letter in similar vein:
If incarcerating people with no charges and no trial indefinitely -- while making clear that the imprisonment will likely last decades -- isn't unconstitutional, then it's hard to imagine what would be.I am pleased to see a national conversation going on here. I hope it continues. It's exactly the kind of public conversation that never happened after 9/11, never happened before Iraq, never happened regarding detainees in the first place, never happened re Guantanamo.
As citizens, we have to make sure these public conversations continue!
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Here is another MUST READ article that pertains to these indefinite detentions and the reasons why we must hew to the Rule of Law:
http://www.huffingtonpost.com/david-bromwich/land-of-the-safe-and-home_b_207252.html
Just a flavor:
May 25, 2009 3:25 PM | Reply | Permalink
Boy you really have me goin to this emptywheel.
Then we have Greenwald making noise, which IS ALWAYS A GOOD THING.
I am impressed by Senator Feingold's letter.I really am.
ALL IS NOT LOST YET.
You sure keep me hot on this subject.
It is no easy subject either. Many issues at work here.
Thank you again and I shall return. I wish to hit Huffpo on your link.
May 25, 2009 3:30 PM | Reply | Permalink
"Perhaps setting up a Constitutional conflict (between Geneva and the Bill of Rights)"
No conflict, but freedoms between them. Geneva offers the loopholes, and the BoR does not clearly close them. But the US can always act better than required by Geneva or the BoR.
As far as I can tell, the Repos are holding up Ms. Johnsen for a kind of projection. Having enjoyed abuse of power for 8 years they are jealous of their past gains and don't want to let any power into that position in opposition.
May 25, 2009 6:31 PM | Reply | Permalink
The Constitutional conflict would be because that clause of Geneva is law. The clause pointed out to you by PCA. And the Bill of Rights is also law. And thus, the problem of detaining someone in a way that is lawful under a treaty but not under our Bill of Rights. If this is what happens, it will end up in the Supreme Court. Which will have to decide which law reigns supreme. I'm guessing it will have to be our Bill of Rights. But that would put the right-wing Justices in a bind.
I personally hope this will be averted.
May 25, 2009 6:37 PM | Reply | Permalink
PCA loaded on a pile of horsefeathers and left the discussion, so I don't know which clause you think is anti-Constitutional.
No law can trump the Constitution. Geneva is just another law here. Geneva doesn't offer any protections as one might say, "against the Constitution," rather what I would call "the loopholes" in Geneva don't proscribe some kinds of conduct in some cases. That means Obama could do some stuff without violating Geneva or its US law equivalents. You believe the BoR DOES proscribe some kinds of conduct.
??
So far it looks like Obama is trying to not make law. That is, he's acting like a Constitutionalist and offering Congress the chance to do its job if there are loopholes in US law which should be closed. It is of course possible that Obama IS violating the Constitution somehow, or planning to do so.
But if a tribunal of some kind evaluates the status of a detainee, and decides to hold the non-citizen non-resident detainee for the duration of a conflict, I just don't see the violation of ANY law in that as long as its not of the kind of The Man In The Iron Mask situation, that is, it's not secret.
There might be national security issues about even naming names of some prisoners. There could be a debate about whether letting the enemy know you've got one of their people in custody is a "loose lips sink ships" kind of situation, or by contrast is just something we should do regardless of any tactical or strategic value of the secret.
May 25, 2009 7:36 PM | Reply | Permalink
Yeah, he's made a proposal. And he's gonna back off and see how the chips fall, I think. Not lookin' good to my mind. But I agree, he's not going to "make law" or just "do it" like w did.
We can pretty much guess who he means might need detention. Abu Zubaida is one. People who were tortured. At the very least those.
May 25, 2009 7:43 PM | Reply | Permalink
I don't see how allegations of torture mean that AZ or others cannot be legally kept in detention. AZ in particular is said to have offered lots of info before he was subjected to harsh interrogations.
It is possible he might be considered incompetent to stand trial etc., but that's not an argument against some kind of detention esp. if he professes violence.
May 26, 2009 5:24 AM | Reply | Permalink
"Horsefeathers"? now that's what I call an orthogonal argument. "Left the discussion"? LOL! I did not feel like responding to an insubstantial derogation, which totalled 7 words:
Oh, lead me out of the wilderness, Master Eds...May 25, 2009 8:59 PM | Reply | Permalink
Yes, counting the substance of a discussion by the number of words is a nice example of horsefeathers, again.
May 26, 2009 5:12 AM | Reply | Permalink
I don't see how Geneva even applies. Since when is Al Quaeda party to the treaty - and by what voodo magic do we morph international law to make them such?
Our fight against the criminal organization Al Quaeda doesn't meet any international definition of a real war. Americans have become muddleheaded by misusing the term for the last two decades. War on drugs, war on poverty, war on terror - all faux war framing. I imagine nations party to our treaties are dismayed at the announcement America can declare war on a group within their borders and bypass the entire concept of national sovereignty.
I'd like a better description of how this Machiavellian POfakeW framing actually works under the rules of international law.
May 26, 2009 12:12 PM | Reply | Permalink
I just posted a new blog:
U.S. Constitution; Article VI; Clause 2 - The Antifederalist Dissent
May 25, 2009 8:44 PM | Reply | Permalink
And it is a stupendous blog! If anybody hasn't seen it, click, read, and your eyes will be opened!
May 25, 2009 11:42 PM | Reply | Permalink
*If* the prisoners are classified as POWs, they can be held indefinitely.
Prisoners are NOT criminals under the Geneva Conventions. Being a combatant isn't a crime. War is not illegal. That said, they may have committed crimes and/or war crimes.
May 26, 2009 1:12 PM | Reply | Permalink