home

The Obama Administration's Indefinite Detention Policy: The Return Of The President As King?

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. - President Barack Obama, May 21, 2009

December 21, 2010 ProPublica report on the proposed Obama Administration executive order on indefinite detention:

[T]he [proposed] order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

(Emphasis supplied.) The proposed executive order reported on by ProPublica is not only a violation of the promises made by the President himself; in my view, it is likely a violation of the Geneva Conventions and the Constitution. I'll explain my view on the flip.

Back in May of 2009, I wrote a very long post articulating my view that the indefinite detention policy that was being discussed by the Obama Administration could be compliant with the Constitution and the Geneva Conventions. At the time, the President stated that indefinite detentions would be subject to periodic judicial review.

The key to my analysis was the President's statement that:

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[.]

The reported proposed executive order on indefinite detention violates this condition. Instead, it reverts to the Bush system that President Obama criticized by saying "we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone." Now the Obama Administration appears to be proposing an indeifinte detention system that indeed is based "simply on what [he] or the executive branch decide alone."

Such a system is in violation of the Geneva Conventions and the Constitution. It would be a travesty, and likely, a war crime.

Speaking for me only

< Tucson Sheriff Authorizes Use of Mass Lethal Force Against Drug Suspects | Plausible Deniability >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Display: Sort:
    Seems obviously tyrannical and illegal (5.00 / 1) (#3)
    by ruffian on Wed Dec 22, 2010 at 09:03:29 AM EST
    to me.  

    I think Thomas Jefferson would agree. From the original airing of grievances:

    For depriving us in many cases, of the benefit of Trial by Jury:

    For transporting us beyond Seas to be tried for pretended offences

    Oh tea party, I expect to hear from you on this!

    Again, we were promised change and got continuity. (5.00 / 2) (#4)
    by Buckeye on Wed Dec 22, 2010 at 09:04:52 AM EST


    Bush III? (none / 0) (#6)
    by republicratitarian on Wed Dec 22, 2010 at 09:05:18 AM EST
    Amazing that Obama's campaign said McCain (5.00 / 1) (#7)
    by Buckeye on Wed Dec 22, 2010 at 09:07:48 AM EST
    wanted to give Bush another term.  In many areas, it was Obama that gave it to him.

    Parent
    Well it doesn't sound like (5.00 / 1) (#9)
    by lilburro on Wed Dec 22, 2010 at 09:19:16 AM EST
    a trial balloon...the NYTimes is covering it too:

    The Bush administration set up its annual review board system during its unsuccessful fight to prevent the Supreme Court from granting the detainees a right to have their cases reviewed by federal judges, who could ultimately order their release if the evidence against them was weak.

    The Obama administration's proposal, by contrast, would supplement such habeas corpus hearings in court. While judges would determine whether it was lawful to hold someone as a wartime detainee -- because he is part of Al Qaeda or the Taliban -- the review boards would determine whether it was necessary to do so, one official explained.

    and

    The Obama proposal, by contrast, would establish a "periodic review board" drawn from many agencies, not just the military, and modeled on a parole board, one official said. Detainees would be represented by lawyers and would have greater access to some of the evidence against them.

    Among the details yet to be determined are how often each detainee's files would be reviewed, and how often he would receive a full-blown hearing.

    Sounds more or less like a done deal in terms of excluding periodic judicial review.

    Oddly enough the ACLU and the Human Rights Campaign don't appear to be kicking and screaming about this.

    Or.... (5.00 / 2) (#30)
    by CST on Wed Dec 22, 2010 at 02:20:01 PM EST
    this just came out and they are taking their time responding.

    "It is impossible to evaluate the review process in the proposed executive order without seeing it, but we have serious concerns about any order that would institutionalize indefinite detention for Guantánamo detainees. Where credible evidence exists against Guantánamo detainees, they should be charged and prosecuted under our criminal justice system, which has a successful record of prosecuting terrorism suspects and is the only way to provide the fair and reliable outcomes that Americans deserve."

    Link

    Parent

    Of course (none / 0) (#31)
    by jbindc on Wed Dec 22, 2010 at 02:49:42 PM EST
    There's been a draft of this floating around for 18 months now, so I'm not sure how much time they'd need to have a response prepared.

    Parent
    no one else did either (none / 0) (#32)
    by CST on Wed Dec 22, 2010 at 03:05:13 PM EST
    besides, for a group that tends to take legal action on such things, I doubt a draft would suffice.

    Parent
    Because.. (none / 0) (#12)
    by TeresaInSnow2 on Wed Dec 22, 2010 at 09:35:07 AM EST
    Oddly enough the ACLU and the Human Rights Campaign don't appear to be kicking and screaming about this.

    Only Nixon could go to China.  Only Obama could get away with this.  If the Republicans did this very thing, both those orgs would be screaming to high heavens.

    Parent

    Amen sister! (none / 0) (#26)
    by DaveCal on Wed Dec 22, 2010 at 12:21:19 PM EST
    Where are all the calls from the left for Impeachment of Obama.  This is just swept under the rug because it's not GWB.

    Parent
    At least (none / 0) (#27)
    by jbindc on Wed Dec 22, 2010 at 12:26:35 PM EST
    he's not McCain.

    <snark>

    Parent

    The horse has left the barn (5.00 / 2) (#11)
    by mmc9431 on Wed Dec 22, 2010 at 09:31:28 AM EST
    Democrats are paranoid at the prospect of being shown as weak on national security. We're stuck with two parties trying to out "Butch" each other.

    Sad but true, too many American's have bought into the idea that even a false sense of security is worth any price.

    I know it's beating a dead horse but this is exactly why these policies needed to be fought when they were implemented.

    Once power has been given, it becomes very difficult to take it way. In all likihood it will get worse, not better.

     

    This all (5.00 / 5) (#17)
    by Ga6thDem on Wed Dec 22, 2010 at 10:19:08 AM EST
    goes back IMO to '06 and Pelosi putting impeachment off the table. This stuff needed to be investigated back then so that the people of this country would know beyond a shadow of a doubt what has been going on.

    Too Many (5.00 / 1) (#20)
    by mmc9431 on Wed Dec 22, 2010 at 11:04:48 AM EST
    High ranking Democrats would have been caught in the net. Cheney's a very shrewd politician. He made sure they wouldn't dare to go after him.

    Parent
    Well (none / 0) (#22)
    by Ga6thDem on Wed Dec 22, 2010 at 11:11:05 AM EST
    that's a pretty sad statement on our country but I don't think Cheney is quite as shrewd as you give him credit for. I mean this is the guy that shot someone hunting because he's so inept.

    Parent
    Barney Fife! (none / 0) (#23)
    by mmc9431 on Wed Dec 22, 2010 at 11:28:35 AM EST
    Maybe on the rifle range he was a bumbler, but in DC I think he was the true puppet master during the reign of GWB. I'm not convinced that GWB has the intelligence or the political savvy to do the damage he did to the country.

    Parent
    Well (none / 0) (#28)
    by Ga6thDem on Wed Dec 22, 2010 at 01:06:37 PM EST
    I can see your point on that one.

    Parent
    He was a bumbler (none / 0) (#29)
    by jbindc on Wed Dec 22, 2010 at 01:15:06 PM EST
    Because he was drunk

    Parent
    I wish I thought that highly of the American (none / 0) (#19)
    by ruffian on Wed Dec 22, 2010 at 10:56:20 AM EST
    people. Much of it is right out in the open and most people seem to be perfectly fine with it as long as they think it is keeping the big bad wolf away from their door.

    Parent
    Well (none / 0) (#21)
    by Ga6thDem on Wed Dec 22, 2010 at 11:09:31 AM EST
    they might just be okay with it as you say but until you hit them in the face with it they can continue to basically deny what's happening or pretend that everything is okay. Yeah, there's lot of conservatives who know what's going on but they openly admit that they are pro-torture.

    Parent
    Wouldn't you just love to read the (5.00 / 6) (#18)
    by Anne on Wed Dec 22, 2010 at 10:23:43 AM EST
    OLC memos on this policy?  I suspect they might be at least as revealing as those written in the Bush OLC - they might even be indistinguishable from the Bush memos.

    One of the things that has been of increasing concern to me is the effort undertaken to figure out how to "legalize" actions and policies that used to be assumed to be illegal - and it does not give me any comfort at all to see that the Obama administration is dedicating itself to more of this kind of how-can-we-make-it-legal argumentation.

    The collateral effect, of course, is to make Democrats complicit in these things and eliminate much of the demand for accountability we used to be able to make - we may not have been getting the accountability, but at least to some extent, we had more credibility to pursue it.  Now, we have no credibility and little to protect us from our rights being summarily disregarded.

    Wish I knew how to reverse this trend, but I don't; I only see things getting worse.


    I have been seeing John Brenna's name (none / 0) (#24)
    by oculus on Wed Dec 22, 2010 at 11:41:14 AM EST
    in the paper and on the web--frequently as of late.  

    Parent
    Gee, I wonder (none / 0) (#25)
    by NYShooter on Wed Dec 22, 2010 at 12:20:01 PM EST
    where Obama would have been on the debate if Miranda hadn't been Law yet?

    Far fetched? I don't think so.

    Parent

    What a hoot! (none / 0) (#1)
    by Abdul Abulbul Amir on Wed Dec 22, 2010 at 08:57:19 AM EST

    Since the army and Marines are not trained to gather evidence in a manner that would pass muster with judicial review, perhaps a catch and release policy is the only solution.

    The FBI works alongside them (5.00 / 2) (#13)
    by Militarytracy on Wed Dec 22, 2010 at 10:04:22 AM EST
    in Afghanistan and properly collects the evidence and has been doing so for a few years now.  They work within teams and suppose at this time they have even trained a few military personnel in how to do this.

    In every action taken also, lawyers are present and watching all the feeds.

    Parent

    Didn't know that, interesting (none / 0) (#16)
    by republicratitarian on Wed Dec 22, 2010 at 10:15:40 AM EST
    Can US citizens be indefinitely (none / 0) (#2)
    by observed on Wed Dec 22, 2010 at 09:01:14 AM EST
    detained under these rules?

    Ask Jose Padilla (5.00 / 2) (#5)
    by republicratitarian on Wed Dec 22, 2010 at 09:04:56 AM EST
    Assuming habeas review remains available (none / 0) (#8)
    by andgarden on Wed Dec 22, 2010 at 09:17:36 AM EST
    I'm not sure there's a big issue.

    Not correct (5.00 / 1) (#10)
    by Big Tent Democrat on Wed Dec 22, 2010 at 09:25:17 AM EST
    POWs not held in the US do not have habeas rights.

    One word for you - Bagram.

    Parent

    Ahhhh, now that's a fair point (none / 0) (#14)
    by andgarden on Wed Dec 22, 2010 at 10:10:39 AM EST
    I was thinking about Boumediene/Guantanamo. I guess what limits what the President does in Bagram is the continuing vitality of the AUMF.

    Parent
    This is not new (none / 0) (#15)
    by NYShooter on Wed Dec 22, 2010 at 10:11:21 AM EST
    news.

    Am I missing something?

    Parent