Obama Considering Unconstitutional Imposition Of Preventive Detention Policy

(See also Prof. Darren Hutchinson.) Glenn Greenwald:

When Obama first unveiled his "preventive detention" policy, many defenders praised him (and claimed he was different than Bush) because of his vow that -- as he put it -- "my Administration will work with Congress to develop an appropriate legal regime." But now, relying exclusively on three Obama officials speaking behind a veil of anonymity, Peter Finn and Dafner Linza of The Washington Post and ProPublica report that the White House is "crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely."

(Emphasis supplied.) Outside of a theater of war, the President has no such Constitutional authority as the Supreme Court has ruled repeatedly in the last decade. This is a settled legal question. Glenn probably thinks of me as a "praiser" of Obama's previous statements on preventive detention. Whatever. My pieces speak for themselves. What I have NEVER praised is the idea that the President has the unilateral power to hold anyone indefinitely outside of a theater of war. Not only must Congress pass enabling legislation - the legislation must pass Constitutional muster (which means judicial review of the Presidential detentions) and must also comply with the Geneva Conventions. What Obama is reported to be contemplating is simply outrageous and unacceptable. It is Bushism on steroids. It would be unconstitutional. It would be struck down by the Supreme Court. It must be rejected and if Obama is even considering it, it is to his great discredit. It would be the most outrageous and offensive action Obama could take short of reimposing Bush's torture policy.

Speaking for me only

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    Over and above the (5.00 / 3) (#1)
    by MO Blue on Sat Jun 27, 2009 at 09:29:03 AM EST
    fact that this is unconstitutional, has anyone considered the worldwide ramifications of this type of policy. This would give a green light and approval to any country to hold U.S citizens for any reason without trial indefinitely.


    I have (none / 0) (#10)
    by TeresaInSnow2 on Sat Jun 27, 2009 at 10:29:38 AM EST
    numerous times.

    Of course many issues are okay for us, not okay for other countries.  Why would this one be any different? <shrug>


    Oh, we never think of chit like that (none / 0) (#17)
    by Militarytracy on Sat Jun 27, 2009 at 10:52:02 AM EST
    We didn't think that people who we "detained" and "interrogated" in Iraq might go home after we "deemed" them innocent and come back with a whole family of, "insurgents", bomb builders, or suicide bombers either.

    You know what (5.00 / 4) (#18)
    by Militarytracy on Sat Jun 27, 2009 at 10:57:43 AM EST
    Standing back and looking at all this today....I just wanna go home, leave Iraq, leave Afghanistan, just go home now...not tomorrow, now.  I'm just not up for more bloodshed that involves selling my soul.  The NATO countries don't even want to do the chit we want to do in Afghanistan and they have a great deal more to fear from Fundy Islamic Terrorism than I do.  I just wanna go home now.  Efff this crazy.  Efff Mr. Militarytorture running this show and anyone giving a rip.  I guess we are going to do torture and stuff different this time.  I guess this time it's going to work out for the betterment of mankind. This is getting nuts.  I don't know what to think right now.

    see Huff Post for a headline about (5.00 / 1) (#19)
    by oculus on Sat Jun 27, 2009 at 11:07:01 AM EST
    how our poppy-eradication program is ineffective.

    I can't right now (none / 0) (#20)
    by Militarytracy on Sat Jun 27, 2009 at 11:09:13 AM EST
    I will have to go see it later or my head will explode.

    let's hope this is all b.s. (5.00 / 2) (#2)
    by Dadler on Sat Jun 27, 2009 at 09:34:25 AM EST
    but i have little doubt, based on obama's personality traits, that he could be easily led to slaughter on this issue.  cowardice is cowardice, and he seems to possess it in abundance politically and, in this case, morally.

    and MO Blue is more than right, this is yet another thing that will, in the end, hurt us and our citizens/soldiers abroad infinitely more than it helps anyone or anything.

    it is, in short, absurdly phucking stupid.

    The President was a professor of (5.00 / 5) (#9)
    by oculus on Sat Jun 27, 2009 at 10:29:18 AM EST
    constitutional law at the University of Chicago.  He is not being "led to slaughter."

    to clarify (none / 0) (#13)
    by Dadler on Sat Jun 27, 2009 at 10:32:36 AM EST
    your point is more than valid.  i mean this: he is not being anything approaching a leader here, he is a follower of bush.  and followers are the ones led to slaughter.

    I disagree. You are letting him off the hook. (5.00 / 1) (#16)
    by oculus on Sat Jun 27, 2009 at 10:42:26 AM EST
    nah (5.00 / 2) (#24)
    by Dadler on Sat Jun 27, 2009 at 11:19:28 AM EST
    we're just not communicating.  he is solely responsible for his actions.  he is a follower, not a leader.  that is simply my point here.  i let him off the hook for nothing, which you should glean from my myriad of posts critical of him.  but i can see how you could interpret that from my piss-poor early morning yammering.

    Despite the claim of professor, (none / 0) (#25)
    by KeysDan on Sat Jun 27, 2009 at 11:43:08 AM EST
    Obama's academic title at the University of Chicago School of Law was Lecturer --from 1992 to 96 (full time) and Senior Lecturer from 1996 to 2004 (part-time, while a state senator).

    I too was a lecturer at U of Chicago (5.00 / 1) (#43)
    by Spamlet on Sat Jun 27, 2009 at 01:57:46 PM EST
    once upon a time. And I never called myself, or knowingly let anyone else call me, a professor.

    Please note I used "p" not "P" (none / 0) (#26)
    by oculus on Sat Jun 27, 2009 at 11:51:30 AM EST
    and during the campaign the University of Chicago "clarified" Senator Obama was a "professor" at the law school.

    Yes, I saw the (5.00 / 2) (#28)
    by KeysDan on Sat Jun 27, 2009 at 12:02:05 PM EST
    U of C public relations office release at that time.  Does not conform, however, to the faculty bylaws definitions.  But, he does have a better title now.  

    Why would he settle for better military or (5.00 / 3) (#29)
    by Militarytracy on Sat Jun 27, 2009 at 12:14:17 PM EST
    legal advisors than he has economic advisors if he desires stability and consistency during these troubled times?  I'm just so P.O.ed.  I need to go get a pump of some sort to blow up Zoey's new baby pool so I'm leaving now to go do something that requires my seeing straight.  I just wish my problem with Obama was that he couldn't keep it in his britches.  Michelle probably disagrees with me on that though.

    You are on a roll today MT. Don't blow (none / 0) (#32)
    by oculus on Sat Jun 27, 2009 at 12:40:03 PM EST
    up the baby pool!

    The policy itself is just wrong and it is (5.00 / 6) (#3)
    by Anne on Sat Jun 27, 2009 at 09:53:00 AM EST
    dangerous, so I would have no better feelings about it if it were being authorized through the legislative branch; I felt the same way about the Military Commissions Act and the Patriot Act and the FISA amendment: bad policy that does not transform to good policy by virtue of Congressional action.

    So, there's that part of it that is not acceptable to me: the policy itself.

    Then, we get to the parts that are very disturbing because of the pattern that has developed, which is, as Glenn points out and which is obvious even to lesser lights like mine, that Obama will only go through the appropriate channels when he is assured of the outcome.  When Obama's plan for the Guantanamo detainees seemed to have been designed around which detainees would get which trial methods depending on which ones would result in convictions, I shuddered; it seemed clear that this wasn't about justice for him, or the rule of law (shouldn't we expect more from someone who taught con law?), it was about determining the outcome before the process even started.  What?  This is just wrong.

    And it brings up another element that has been at the back of my brain and moving forward for the last couple of weeks: the OLC and Dawn Johnsen.  If Dawn Johnsen had been confirmed as head of OLC, what would her take be?  How would she be advising Obama?  Has there been any advice from the OLC on Obama's proposed executive order?

    I am increasingly convinced that Dawn Johnsen was never supposed to be confirmed; Obama appointed her as a sop to liberals, essentially threw her into a Senate where he knew the usual Senators would object, and as near as I can tell, has done nothing to fight for her confirmation.  Nothing.

    I know nothing about the current acting head of OLC, but I am increasingly suspicious that Dawn Johnsen is lingering without confirmation for a reason: it's much easier for Obama to go all cowboy on us without her at the helm.

    Preventive detention, packaged with show trials, does not sound like anything I would ever have expected a (so-called) Democratic president to be pushing, but I think it shows that power can and does trump party, with dangerous results and far-reaching consequences.

    The point is (5.00 / 1) (#44)
    by Spamlet on Sat Jun 27, 2009 at 02:00:24 PM EST
    shouldn't we expect more from someone who taught con law

    that this is exactly what we should expect from a politician.


    Executive Order v Statute (5.00 / 4) (#4)
    by Ben Masel on Sat Jun 27, 2009 at 10:12:25 AM EST
    Somebody's afraid of the junior Senator from Wisconsin.

    Or...combined "Yes we can!" (5.00 / 2) (#40)
    by oldpro on Sat Jun 27, 2009 at 01:33:22 PM EST
    with the Nike slogan..."Just do it!"

    Indeed (none / 0) (#7)
    by Big Tent Democrat on Sat Jun 27, 2009 at 10:18:27 AM EST
    Crikey! (5.00 / 1) (#5)
    by Militarytracy on Sat Jun 27, 2009 at 10:14:54 AM EST
    (enjoying that word right now)

    I didn't even see this up.  I want my last comment on here....so please go here to see it.

    Seems to me that Hamdi (5.00 / 1) (#6)
    by andgarden on Sat Jun 27, 2009 at 10:18:05 AM EST
    makes this obviously illegal. Are they just playing for time?

    That would be very Bushian (5.00 / 3) (#8)
    by Fabian on Sat Jun 27, 2009 at 10:27:21 AM EST
    of them.  Bush spent a lot of his second term running the clock out on many issues (including the economy) with a cowardly Congress enabling the continuous stalling.

    Congress hasn't changed much.  (I want Senator Franken!)  Can we expect anything different.


    This coming from the same President (5.00 / 2) (#31)
    by andgarden on Sat Jun 27, 2009 at 12:36:41 PM EST
    who hides behind Congress when it comes to DADT.

    Same re immigration reform as far as I (5.00 / 2) (#33)
    by oculus on Sat Jun 27, 2009 at 12:40:45 PM EST
    can tell.

    I read Greenwald (none / 0) (#36)
    by Fabian on Sat Jun 27, 2009 at 01:12:39 PM EST
    He outlines Obama's SOP.  If Obama really wants to do something, he'll see if he can get it via Congress or the Courts.  If not, he'll pull a Bush and do it himself.

    If Obama doesn't really want to do it, he'll punt it to Congress and if Congress does nothing, Obama will ignore the issue.

    So.  In that case, what issues are really important to Obama?

    Suppressing the torture photos.
    Indefinite detention.

    Any others on the list?


    Love this AP headline: (5.00 / 1) (#38)
    by oculus on Sat Jun 27, 2009 at 01:22:29 PM EST
    Analysis: Obama shows flexibility on health care

    Maybe we could trade Obama to the (5.00 / 3) (#39)
    by Anne on Sat Jun 27, 2009 at 01:32:19 PM EST
    men's gymnastics team; I think his talents would be much better utilized there.

    Notice I did not specify which country's team he should compete on; I mean, why limit him to the US team when it would be a testament to his flexibility - and all-around awesomeness - if he did a stint on every team?

    Now, which event would be his best one?  Rings?  No position held there for more than a couple of seconds.  Floor?  He could be all over the place.  Vault?  Running fast and leaping over an obstacle.  Parallel bars or pommel horse?  Swing to the left, swing to the right, watch out for the middle.  High bar?  Can he stick the landing after a so-so performace?

    Seems perfect to me.


    ROTFLMAO (none / 0) (#50)
    by mexboy on Sat Jun 27, 2009 at 04:05:12 PM EST
    Maybe we can (none / 0) (#51)
    by cal1942 on Sat Jun 27, 2009 at 04:09:35 PM EST
    bring someone up from the farm in 2012 and let him go on waivers.

    Trouble is, what damage in the meantime.


    His health care is assured! (5.00 / 3) (#41)
    by Fabian on Sat Jun 27, 2009 at 01:34:22 PM EST
    He's being flexible on Other People's health care.  That's easy to do!

    It's (5.00 / 4) (#11)
    by TeresaInSnow2 on Sat Jun 27, 2009 at 10:30:08 AM EST
    It's not only wrong, it's impeachable....if we had the right Congress and the right press.

    oops, never mind.

    They are using the same arguments as Bush (5.00 / 2) (#21)
    by blogname on Sat Jun 27, 2009 at 11:13:25 AM EST
    They already previewed this argument earlier this year. It's basically Bush's "enemy combatant" analysis, repackaged by Obama to look "friendlier." Obama will claim, just as Bush did, that the AUMF and the law of war allow such detentions to occur.  Obama will put it in an executive order in order to avoid fighting with Congress (thus enlarging the executive).

    Obama's theory posits that anyone related to Al Qaeda is "at war" with the US (sounds familiar) and is therefore subject to detention.  Recall when Kagan was asked about this issue during her confirmation hearings, she embraced the proposition that the government could indefinitely detain individuals captured in remote locations like the Phillipines.  In a Bagram case, Obama is trying to deny habeas to individuals that the feds shipped to Bagram and is using the location to deny habeas. Bagram is, according to the government in the theater of war.

    For more, see: Indefinite Detention By Executive Order: Another Looming Disappointment for the Left?

    I like Greenwald's term: abductees. (5.00 / 2) (#22)
    by oculus on Sat Jun 27, 2009 at 11:15:05 AM EST
    Yeah, even though Bagram (none / 0) (#23)
    by Militarytracy on Sat Jun 27, 2009 at 11:18:32 AM EST
    has a speed limit, a Harley dealership, and Burger King, it is in the theater of war where we have to get our torture on.

    Think I need a new ... (5.00 / 2) (#27)
    by Robot Porter on Sat Jun 27, 2009 at 12:01:38 PM EST
    "I Told You So" T-Shirt.  The one I've been wearing has become threadbare from overuse.

    Do you have Hillary T shirt? (none / 0) (#30)
    by Militarytracy on Sat Jun 27, 2009 at 12:15:06 PM EST
    Heh. Not NOW, Tracy!! (5.00 / 1) (#34)
    by oldpro on Sat Jun 27, 2009 at 12:58:31 PM EST
    Pump up that pool and watch the baby...

    I'm with you.  We need a time out today or somebody's gonna lose it.


    Oh, MT, didn't you know the (5.00 / 1) (#35)
    by oculus on Sat Jun 27, 2009 at 01:02:03 PM EST
    primaries are so over?

    Yes...and no. (5.00 / 1) (#37)
    by Fabian on Sat Jun 27, 2009 at 01:21:53 PM EST
    Yes, the primaries are officially over.

    No, the dynamics(politics of personality), social phenomena (-isms) and politics (da roolz!) are still with us.


    And the primaries are still (5.00 / 4) (#42)
    by oldpro on Sat Jun 27, 2009 at 01:37:23 PM EST
    'alive' in the history books which will be written.  No escaping that...not Nixon, not Bush and not Obama.

    Candidate Obama selected (none / 0) (#45)
    by oculus on Sat Jun 27, 2009 at 02:07:10 PM EST
    the author of quasi The Making of the President re most recent campaign

    Translation, please? (none / 0) (#47)
    by Spamlet on Sat Jun 27, 2009 at 02:52:19 PM EST
    Let me make myself perfectly clear: (5.00 / 3) (#48)
    by oculus on Sat Jun 27, 2009 at 03:15:23 PM EST
    Thank you! (none / 0) (#49)
    by Spamlet on Sat Jun 27, 2009 at 03:29:36 PM EST
    And we're (5.00 / 2) (#52)
    by cal1942 on Sat Jun 27, 2009 at 04:13:19 PM EST
    again getting our noses rubbed in it.

    Cue Socratic Silence . . . (5.00 / 1) (#46)
    by Spamlet on Sat Jun 27, 2009 at 02:09:52 PM EST
    BTD, does "theater of war" (none / 0) (#12)
    by oculus on Sat Jun 27, 2009 at 10:31:57 AM EST
    encompass the person who is raising funds in the Philippines for an Islamic charity?  

    It could (5.00 / 2) (#14)
    by Big Tent Democrat on Sat Jun 27, 2009 at 10:34:45 AM EST
    in my mind, depending upon the evidence.

    I think Congress would probably (none / 0) (#15)
    by andgarden on Sat Jun 27, 2009 at 10:39:15 AM EST
    have to be more specific with its authorization.

    Either I am too thick to 'get it,' (none / 0) (#53)
    by oldpro on Sat Jun 27, 2009 at 04:16:40 PM EST
    but I am unable to follow BTD's bouncing ball in his disagreement with Greenwald about whether it's possible to make Obama's detention policies legal/constitutional.

    Not a lawyer so I need a primer...preferably in words of one syllable.

    Now for a break...or a nap...

    Either, OR...yes, time for a nap. (none / 0) (#54)
    by oldpro on Sat Jun 27, 2009 at 04:17:48 PM EST
    It's a Presidential power question, probably (none / 0) (#55)
    by andgarden on Sat Jun 27, 2009 at 04:37:45 PM EST
    within the realm of foreign policy (though maybe not).

    You might want to start by reading the decision in Hamdan v. Rumsfeld (also take a look at the concurrences and dissents).

    Also look at Dames and Moore v. Regan and Jackson's concurrence in Youngstown:

    The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

    1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [n2] In these circumstances, [p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, [p637] as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

    2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [n3]

    3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject. [n4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

    Though I should say that I think the question of whether indefinite detention is possible at all, even with a Congressional grant, hasn't really been answered by the Court.


    Homework. Thanks, teach... n/t (5.00 / 1) (#56)
    by oldpro on Sun Jun 28, 2009 at 01:26:24 PM EST