[Ppnews] Why Indefinite Detention By Executive Order Should Scare the Hell Out of People

[Political Prisoner News]

http://www.counterpunch.org/

December 23, 2010


Why Indefinite Detention By Executive Order Should Scare the Hell Out of People

Obama's Liberty Problem

By BILL QUIGLEY and VINCE WARREN

The right to liberty is one of the foundation 
rights of a free people [sic].  The idea  that 
any US President can bypass Congress and bypass 
the Courts by issuing an  Executive Order setting 
up a new legal system for indefinite detention of 
people  should rightfully scare the hell out of the American people.

Advisors in the Obama administration have floated 
the idea of creating a special  new legal system 
to indefinitely detain people by Executive Order.

Why?  To do  something with the people wrongfully 
imprisoned in Guantanamo. Why not follow  the law 
and try them?  The government knows it will not 
be able to win  prosecutions against them because 
they were tortured by the US.

Guantanamo is coming up on its ninth anniversary 
– a horrifying stain on the  character of the US 
commitment to justice. President Obama knows well 
that  Guantanamo is the most powerful recruitment 
tool for those challenging the 
US.   Unfortunately, this proposal for indefinite 
detention will prolong the corrosive  effects of 
the illegal and immoral detentions at Guantanamo 
rightly condemned  world-wide.

The practical, logical, constitutional and human 
rights problems with the  proposal are uncountable.

Our system provides a simple answer developed 
over hundreds of years – try them  or release 
them.  Any other stop gap measure like the one 
proposed merely pushes  the problem back down the 
road and back into the courts again.  While it 
may appear to be a popular political response, 
the public will soon enough see this  for what it 
is – an unconstitutional usurping of power by the 
Executive branch  and a clear and present danger to all Americans.

The US government has never publicly said who can 
be prosecuted and who they  have decided to hold 
indefinitely because they think they cannot 
successfully  charge them.  Now, after holding 
people for years and years, they think they can 
create a new set of laws by Executive Order which 
will justify their actions?

Recall that dozens of the very same people who 
would now be subject to  indefinite detention 
have already been cleared for release by the 
government.   How can indefinite detention of 
people we already cleared to go home possibly be  legal?

The government proposes essentially to detain 
people for being a potential  member or friend of 
the enemy force – a standard that is too open 
ended and  inconsistent with the US and international laws of war.

Our criminal process, requiring charge, 
conviction and other safeguards, is the  primary 
means by which the government may deprive a 
person of liberty, with  carefully limited exceptions.

“Freedom from bodily restraint has always been at 
the core of the liberty  protected by the Due 
Process Clause from arbitrary governmental 
action.”  The  Supreme Court has “always been 
careful not to “minimize the importance 
and  fundamental nature of the individual’s right 
to liberty.” Foucha v Louisiana,  504 US 71 (1992).

The liberty of all persons is protected by the 
criminal process guarantees,  among other rights: 
the right to be free from unreasonable searches 
and  seizures; probable cause for arrest; right 
to counsel, right to indictment by  grand jury; 
right to trial by an impartial jury; the right to 
a speedy public  trial; the presumption of 
innocence; the right that government must prove 
beyond  a reasonable doubt every fact necessary 
to make out the charged offense; a  privilege 
against self-incrimination; the right to confront 
and cross examine  witnesses; the right to 
present witnesses and use compulsory process; the 
duty  on the government to disclose exculpatory 
evidence; prohibition against double  jeopardy; 
prohibition against bills of attainder and ex 
post facto laws; and a  prohibition against selective prosecution.

For hundreds of years judges and legislatures and 
advocates for justice have  struggled to create 
protections for our liberty [like genocide 
against Indigenous people, slavery, colonialism 
and war].  People who suggest bypassing  all of 
these protections of our liberty in the name of 
safety or politics do our  people and our history a grave disservice.

Some wrongfully suggest that preventive detention 
by the Executive would be  allowed because the 
law already allows civil confinement.  But there 
are only  very narrow circumstances when limited 
civil confinement is allowed by law.  It  is 
clear government cannot use civil detention or 
anything like it to effect  punishment or to 
escape the comprehensive constraints of the 
criminal justice  system. Kansas v Crane, 534 US 
407, 412 (2002) (noting that civil 
commitment  must not “become a mechanism for retribution or general deterrence.

Further, preventive detention also violates 
international law, specifically 
the  International Covenant on Civil and Political Rights (ICCPR), article 9.

The proposal to create a special new legal system 
by Executive Order is an end  run around Congress 
and the Judiciary. It will lengthen the illegal 
detentions  in Guantanamo and will force this 
entire system back into the courts for 
years.   It will further damage US efforts to 
portray itself as a fair country of laws,  and 
will threaten the liberty of every single US 
citizen who is not in  Guantanamo because it will 
damage the due process guarantees which have 
built up  over the years to protect each one of us.

Vince Warren is the Executive Director at the Center
for Constitutional Rights (CCR).

Bill Quigley is Legal Director of CCR and law
professor at Loyola University New Orleans. You can reach Bill at
<mailto:Quigley77 at gmail.com>Quigley77 at gmail.com




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