No indefinite detention
No President should retain for him/her self the right to detain people indefinitely - not if your last name is Lincoln, Bush, or Obama. At some point, due process must come into play. Otherwise, we are all at risk of becoming the one who is so detained.
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Do you think this indefinite detention is something the U.S. has been doing for centuries?
June 27, 2009 10:38 AM | Reply | Permalink
I know Lincoln was doing something along those lines during the Civil War (see EX PARTE MERRIMAN -sp?- case).
June 27, 2009 12:00 PM | Reply | Permalink
Couldn't agree with you more, but in this case (as with Bush)and very unlike Lincoln, there is no excuse for even claiming this power.
Lincoln had the legal authority because of the existing insurrection to use the power he used during the Civil War. Insurrection is the only circumstance under which Habeas Corpus can legally be ignored in this country or by our government.
The Bush/Obama claims to this power are entirely illegitimate and illegal and have no constitutional basis whatsoever, but our nation's system---even the courts---have become so corrupt that they no longer defend the sacred and fundamental law of our land. The republic is finished and the Constitution now little more than a minor obstacle to the monsterous totalitarianism the claim to such power portends.
June 27, 2009 3:30 PM | Reply | Permalink
This is the very bedrock of our law - the right to a writ of habeas corpus. It is the most important right we have as a people. Without it the government has unlimited power to persecute its citizens.
Thanks for bringing this up.
June 27, 2009 5:15 PM | Reply | Permalink
Did I just dream we had an election in 2008?
June 27, 2009 6:35 PM | Reply | Permalink
What's next for Gitmo?
Find out at http://gitmotourism.blogspot.com
June 27, 2009 7:58 PM | Reply | Permalink
This is a complex situation with no ideal solution, tlees. I don't pretend to know the best answer, so let me put the onus back on you.
Imagine you, not Barack Obama, are president of the U.S., but everything else is unchanged. You have promised to close Gitmo, but Congress won't authorize the funds unless a satisfactory arrangement is found for all detainees. Most will be, or already have been released, put on trial, or sent to other nations that have agreed to take them. Only a small minority represent the obstacle to fulfilling your promise.
These are individuals who are judged to be extremely dangerous - capable of masterminding more 9/11 style attacks on the basis of what we know about them. No other nation will take them (except perhaps one or two nations likely to torture and execute them). They can't be successfully tried, either because the evidence was obtained by tainted methods, or because revealing it would jeopardize national security. The latter justification has of course been used as an illegitimate excuse in the past, but I believe most objective observers would say that it is at least sometimes a legitimate concern.
After satisfactorily resolving the cases of the vast majority of detainees, what would you do with these remaining few? Some now argue that these are the exceptional cases justifying indefinite detention, at least until these detainees are judged no longer dangerous. Others object.
They claim instead that what the Administration should do is...
Please fill in the blanks.
June 27, 2009 9:12 PM | Reply | Permalink
Simple. Bring them to trial or release them. Respect the constitution.
Glen Greenwald puts it pretty well in his article " Obama contemplates Executive Order for detention without charges over on Slate.
The whole thing's worth a read, but since I'm doing the excerpting ...
Seems about right, no?
June 28, 2009 1:43 AM | Reply | Permalink
It may seem simple to you, kgb, but I hope others will read my comment above to form their own judgment. I still don't know what the right answer is. Probably there is none. Certainly, releasing these dangerous individuals or putting them on trial (where they would be acquitted) is a wrong answer, but maybe there isn't a better one.
June 28, 2009 11:15 AM | Reply | Permalink
How can anyone disagree with this simple statement?
It can be parsed, surely.
But we either return to the laws of the Middle Ages or we move on.
June 28, 2009 11:49 AM | Reply | Permalink
With some trepidation, let me make a tentative prediction. Assume that President Obama finds a satisfactory solution for the vast majority of detainees, and is left with only a tiny minority of intractable cases involving hard core terrorists who could never be convicted (see my comments above for reasons why). I predict that if he settles on indefinite detention and the Supreme Court hears the case, the President's actions will be supported by a majority of the Court that includes at least one or two from the liberal wing.
June 28, 2009 12:44 PM | Reply | Permalink
At that moment the constitution will become a worthless piece of paper.
June 28, 2009 1:00 PM | Reply | Permalink
I tend to consider your absolutist position untenable. I concede that no options available to the President are completely palatable, but at the moment I'm inclined to believe that he can make both a practical and Constitutional argument for preventive detention in extreme cases, and cite precedent that would convince the Supreme Court of the merits of his case. The Constitution will have survived all this.
For his argument to succceed, he would need to convince the Court that the indefinite detention is the least bad of a series of bad options. The Court has, throughout its history, always seen difficult cases as balancing acts, whether they involved First Amendment rights vs national security or a variety of other issues. I believe they would take the same course here.
Again, let's consider the potential scenario. The Administration (let's say) has resolved the cases of almost all detainees. Some have been released, some have been sent to other countries that agreed to accept them, and some are on trial. In a very small number of remaining cases, evidence that an individual poses a severe danger is compelling, but can't be used in court because it was obtained by tainted methods (including torture abroad), or because presenting the evidence to a jury would risk national security.
If the President can't find a means of resolving these cases in a way that does not end up with their release into the U.S., Congress won't approve funds to close Gitmo, and Gitmo will remain open, with all the repercussions of such a circumstance. (Recall the current opposition even to imprisoning some detainees in the U.S., much less releasing them.)
What should he do? I will guess that if the Supreme Court is convinced that he has taken all practical measures to avoid indefinite detention, and it becomes unavoidable for these very few remaining individuals, the Court's practice of weighing the balance among competing principles will compel it to support the President's position, with at least some of the liberal Justices concurring.
June 28, 2009 2:02 PM | Reply | Permalink
Let me suggest an afterthought to my comment above. If the President in fact lost the argument in the Supreme Court, which compelled him either to put every detainee on trial or release him, Congress would have no alternative but to close Gitmo so as to comply with the Court.
In that sense, it would be to President Obama's advantage to see the issue resolved by the Supreme Court, because either way, he would finally gain the leverage to close Gitmo.
June 28, 2009 2:54 PM | Reply | Permalink