A Legal Framework for Trampling on the Bill of Rights
Yesterday, in his speech at the National Archives, Pres. Barack Obama told Americans of his intention to create a system of what he calls “prolonged detention” for Guantanamo detainees who “cannot be prosecuted for past crimes … but who nonetheless pose a threat to the security of the United States.” Here is part of what he said on this subject (emphasis mine):
I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
This entire concept — of legitimizing something that is clearly unconstitutional by creating a “legal framework” for it — chills me to the bone. There is absolutely no place in American tradition for imprisoning someone indefinitely to prevent them for doing something they might do in the future, absent their actually having done anything that can be proved in a court of law. Since when does this country throw people in prison for years, or for the rest of their lives, based on a mere belief that they are “dangerous”?
And what makes this even more distressing is that the media is already starting to fall into line behind this horrendous idea. The same media that spills gallons of ink on the scandalous news that Pres. Obama smiled at Hugo Chavez and shook his hand; the same media that reports endlessly on the gifts that Barack and Michelle Obama give to the Queen of England or to Gordon Brown, or on whether Michelle Obama broke protocol by touching the Queen, has next to nothing to say when the POTUS wants to put into place, for the first time ever in this country’s history, a “legal framework” for arbitrary, indefinite detention without charges and without trial.
I say “next to nothing” because today there actually is an article in the New York Times by William Glaberson called “President’s Detention Plan Tests American Legal Tradition” — and the text of that article is exactly what you would expect from that gentle title. Here is the opening paragraph (emphasis mine):
President Obama’s proposal for a new legal system in which terrorism suspects could be held in “prolonged detention” inside the United States without trial would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.
Um, it would also be a departure from the Fifth and Sixth Amendments of the U.S. Constitution. Think that’s worth mentioning?
Here is the next paragraph:
There are, to be sure, already some legal tools that allow for the detention of those who pose danger: quarantine laws as well as court precedents permitting the confinement of sexual predators and the dangerous mentally ill. Every day in America, people are denied bail and locked up because they are found to be a hazard to their communities, though they have yet to be convicted of anything.
Can you say, stretching a stretch to the point where the muscles dissolve? Indefinite detention without charge or trial on the grounds that you might do something illegal in the future is analogous to quarantine laws? If I’m confined to a hospital bed because I have the swine flu, that’s the same as if I were arrested and thrown into prison on no charges for an indeterminate length of time because I held up an anti-Obama sign at a demonstration and now the government thinks I might be dangerously violent?
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16 Responses to “A Legal Framework for Trampling on the Bill of Rights”
There was a post earlier about Liz Cheney. A commentator (not sure who) left a link to GMA where she appeared. On that show a Democratic chief of staff (not sure for whom) castigated the Bush admin for releasing 75 men from gitmo who later returned to the fight against the US. You can't have it both ways. If there are people who refuse to stop fighting then they must be held until there is not a fight for them to go back to. Otherwise it's negligence on the Administration. Personally I would err on the side of freedom but we can't be stupid about it.
Whether or not you agree with it, your post needs to mention http://en.wikipedia.org/wiki/Law_of_armed_conflict to be taken seriously. You seem to be taking the standard view that the US Bill of Rights is some globally applicable standard, irrespective of sovereignty, citizenship, a war. You can still build the argument along your desired lines (and I’ll still disagree with you), but you can improve it substantially.
R,
C
In their country which we are either invading, occupying or bombing on a regular basis…
I don't want it both ways. I want it one way. We behave like the good guys. We imprison only those we can prove are guilty of something, then we treat them humanely. We prevent terrorist attacks here by heeding warnings, instead of ignoring them as Bush did. And through vigilance which he also failed at (why should we be training foreign nationals here on expired visas to fly?). We ELIMINATE our need for Middle East oil and get the hell out of there.
GD -
We imprison only those we can prove are guilty of something
We prevent terrorist attacks here by heeding warnings
But when there are only vague, non-specific warnings, and no actions as of yet, how do you stop anything unless you imprison those the warnings implicate?
And that does bring up the yet another piece of revisionist history. There were no specific, direct warnings that Al Queada was planning to fly US airliners. There was 'chatter' that they were planning something, but no one knew what.
And it was the laws passed by Democratic Congresses in the past that prevented effective communications between agencies that may, but still likely not, identified r stopped some of the key players.
As for the 'expired visa', yep that is right. We had done a bang-up job before and now after 9/11 identifying and tracking people in the US with expired visas. That may be the only time anyone slipped through the cracks on that front. Certainly never happened before Bush.
And we never had a domestic or international terrorist act on US soil before Bush, and we have had so many after 9/11. It is not like you can look at the steps taken and say they prevented any additional attacks here, right?
Finally, eliminate our need for Middle East oil. Great idea. Let's stop preventing increased domestic drilling and the pursuit of secondary oil extraction capabilities, because NOTHING else, no amount of alt-energy and conservation and hybrid cars and bio-diesel will get us there.
Politics aside it still begs the question of what you do when you have someone in gitmo who wont quit fighting. Trials are great but what are we convicting them of? Fighting us? Then what? They serve their sentence and we let them go to continue fighting us? By the way Bush is out of office. And you wont live to see the end of our dependence on foreign oil.
Everything in the liberal world has easy, popular answers – until liberals actually have to govern – then it all changes.
Isn’t it amazing that when real policies need to be made after a “change” election, those policies turn out to be even more of the same. Bailouts, escalating the Afghan war, keeping troops in Iraq, indefinite detainment, option to waterboard, warrantless surveillance and on and on.
Kathy has zeroed in on the detainment point and eventually (hopefully) she will step back and take in the whole picture to learn that everything the left has spent years whining about will be back in spades (no pun) during this administration.
Welcome to the real world.
The warnings weren't that vague, actually. They were just not heeded.
There are lots of other warnings, from Britain, Germany, the Saudis. Congress had already attempted to mandate reinforced cabin doors on commercial airlines, but this was beaten down by airline lobbyists as too expensive. Yes, this is far easier to see in hindsight, but there were sensible precautions that could have been taken, and should have been. Here's what an FBI attorney reported
The consistent call for extra-Constitutional measures after 9-11 seem weak in light of the fully Constitutional actions that we should take if we are serious about security. These extra measures I think are dangerous as well, because they give us a false sense of security. I know you oppose most domestic spying, but I'm not sure you realize the futility of our paltry attempts at foreign wiretapping.
Imagine you are designing a program to sort through every single phone call for clues. You come up with every code word or phrase you can to pull out those conversations that could tip you off to the 9/11 plan. Here's the actual phone call. Think you would have caught it?
Hey, I'm not getting sarcastic with you, AR. How about some civility? We did have terrorist attacks before, including one on the WTC. That's when the Democratic Congress proposed stronger cabin doors.
As for oil, our remaining domestic supply is a drop in the ocean and can't free us from dependence on foreign oil. But if Carter's CAFE standards hadn't been dumped by Reagan, we would have been free of Middle East oil years ago. Look it up. You're simply wrong that we can't be free of oil from that troubled part of the world.
By the way, jwest, do you know how much of our oil is from the Middle East? Guess.
It's one eighth. Not really that daunting to replace with alternatives. Can we ever get past the No Can Do mentality?
Obama is wrong to do this. If you have committed a crime, then you should go to jail. If your ARE part of a conspiracy to commit a crime, then you go to jail for that. If the government does not like you, then you should NOT go to jail.
This decision concerns the detainees at Gitmo, many of whom were turned over to US officials because their own personal enemies wanted the bounty that the US was paying out for terrorists.
So far Obama has tried to get them into prisons in the US (though can't because of the NIMBY syndrome) or send some to other countries, which are unwilling to accept them. He has tried to close Gitmo and he can't do that either. And he can not send them back to the countries they came from for reasons of the their own personal safety.
Now Obama has to find a way to keep them in Gitmo while their individual cases are reviewed. Obama has come up with different solutions but his hands are now tied. If he has to keep them here, then at least he wants congressional and court oversight to keep the process transparent. If there is oversight by all three branches of the government (and international observers remain in place) then it will be transparent and the criticism from other countries will be kept down.
But it is still wrong, and being the constitutional scholar that he is, he knows that this is wrong. This is something he has to do because he has no other choice at the moment, since his other options have all met with resistance. Obama just last week (or was it the week before?) came out very critical of the Bush administration for creating this legal nightmare. This is one more of Bush's messes that he has to clean up and so far no one has been receptive to his solutions.
Not to defend Obama, but at least he has acknowledged the problem and wants oversight by others to ensure the prisoners are not more mistreated then they already have been (and are, under this system). That's different than Bush who threw away the key, kept his actions secret (including the torture of some of the detainees) and wanted to forget about them.
US imports of crude oil and petroleum by country:
http://www.eia.doe.gov/pub/oil_gas/petroleum/da…
“Not to defend Obama, but at least he has acknowledged the problem and wants oversight by others to ensure the prisoners are not more mistreated then they already have been (and are, under this system).”
Wait until the Gitmo prisoners have to leave their island paradise that is custom made for them and their religious beliefs to go to a supermax facility.
Once allowed in the prison population, some of the very large U.S. inmates will very likely make a playground out of their ass. The fee would have been 3 cigarettes per session, but smoking has been outlawed.
Wait for the commercials on the next election cycle on how the prison guards appreciate having to place their lives in danger protecting terrorists from the other inmates.
GD, And How much (oil) is from Canada and Venasuala? If the middle east stops pumping oil how much will the price go up? Because we buy elsewhere won't matter because the global price will increase. We only produce 34% of the oil we use but no mater where we buy it from (Canada 12%, Saudi 8%, Mexico 9%, Venesaula 9%, Nigeria 6%, ect) we operate in a global market so it makes very little difference. By masivly increasing domestic production (which was cut in half by federal limitation) we could increase but somehow I doubt you are voting for opening Anwar. 50 years may be a reasonable estimate for energy independance.
“But if Carter's CAFE standards hadn't been dumped by Reagan, we would have been free of Middle East oil years ago.”
This is the kind of crap facts that keep getting repeated that just have no reality.
“Wait for the commercials on the next election cycle on how the prison guards appreciate having to place their lives in danger protecting terrorists from the other inmates.”
Yeah I am sure the prison guards, who are paid to work with criminals, would much rather protect mass murderers, child rapists, domestic terrorists, etc. than they would the Gitmo detainees (some of whom are terrorists, some of whom are not).
So what are you saying? We don't do a good job training our prison guards to work with the worst of society? Are you saying we have to protect our prison guards, take their personal feelings into account and keep criminals out of prison because the prison guards don't like a certain type of prisoner and whine about them? I didn't realize that some criminals were “good” and some were “bad”. If the current crop of prison guards can't do their jobs then I say we fire them and train new prison guards who WILL be professionals in their duties and take their jobs seriously. Being a prison guard is no cake walk and if the guards thought it would be when they signed up then they should leave if they can't handle the work.
“Once allowed in the prison population, some of the very large U.S. inmates will very likely make a playground out of their ass.”
What does that have to do with Obama's establishing a legal framework for the Gitmo detainees? Unless you're concerned about the welfare of the detainees/terrorists and you want to keep them in their “island paradise” (as you call it) and a butt sex free environment (if it is). Besides, what's wrong with a little butt sex between pals anyway?
Happens all the time, all over the world, including in Muslim countries. If you don't believe that, boy have I got some stories for you.
SB,
Not that I don’t want to hear your stories of hot ass sex around the Muslim world, but isn’t the whole point to closing Gitmo the perception that the inmates were being mistreated and tortured there?
At Gitmo, they do have an island paradise compared to what they will have at a SuperMax.
What is the reason for closing Gitmo again?
GD – you make some good counter arguments, but remember two points.
One, they seem much lest vague in hindsight, and two, they were as I tried to say, poorly, that those warnings you cite were part of the 'chatter' of multiple indications of something brewing. Again, in hindsight, it is easy to identify them. It is a lot harder when those are part of thousands of daily and weekly tips coming in.
And while I admit to a slight bit of sarcasm and snarkiness in my last post, I really didn't, and still don't, feel that that they rose to the level of being 'uncivil'. I mean, it is not like I was being intentionally provocative!