[Peace-discuss] Indefinite imprisonment unconstitutional, impeachable

[C. G. Estabrook]

[What a fraud Obama is.  The supposed apostle of change is worse than his 
predecessor in this matter.  Who does he think he is, simply to set aside the 
Constitution on trials?  The Democrats may do so badly this fall that a serious 
impeachment campaign can be built against his unconstitutional policies.  --CGE]


	Published on Friday, January 22, 2010 by Salon.com
	Obama to Indefinitely Imprison Detainees without Charges
	by Glenn Greenwald

One of the most intense controversies of the Bush years was the administration's 
indefinite imprisoning of "War on Terror" detainees without charges of any kind. 
  So absolute was the consensus among progressives and Democrats against this 
policy that a well-worn slogan was invented to object:  a "legal black hole." 
Liberal editorial pages routinely cited the refusal to charge the detainees -- 
not the interrogation practices there -- in order to brand the camp a "dungeon," 
a "gulag," a "tropical purgatory," and a "black-hole embarrassment."  As late as 
2007, Democratic Senators like Pat Leahy, on the floor of the Senate, cited the 
due-process-free imprisonments to rail against Guantanamo as "a national 
disgrace, an international embarrassment to us and to our ideals, and a 
festering threat to our security," as well as "a legal black hole that dishonors 
our principles."  Leahy echoed the Democratic consensus when he said:

The Administration consistently insists that these detainees pose a threat to 
the safety of Americans. Vice President Cheney said that the other day. If that 
is true, there must be credible evidence to support it. If there is such 
evidence, then they should prosecute these people.

Leahy also insisted that the Constitution assigns the power to regulate 
detentions to Congress, not the President, and thus cited Bush's refusal to seek 
Congressional authorization for these detentions as a prime example of Bush's 
abuse of executive power and shredding of the Constitution.

But all year along, Barack Obama -- even as he called for the closing of 
Guantanamo -- has been strongly implying that he will retain George Bush's 
due-process-free system by continuing to imprison detainees without charges of 
any kind.  In his May "civil liberties" speech cynically delivered at the 
National Archives in front of the U.S. Constitution, Obama announced that he 
would seek from Congress a law authorizing and governing the President's power 
to imprison detainees indefinitely and without charges.  But in September, the 
administration announced he changed his mind:  rather than seek a law 
authorizing these detentions, he would instead simply claim that Congress 
already "implicitly" authorized these powers when it enacted the 2001 AUMF 
against Al Qaeda -- thereby, as The New York Times put it, "adopting one of the 
arguments advanced by the Bush administration in years of debates about 
detention policies."

Today, The New York Times' Charlie Savage reports:

The Obama administration has decided to continue to imprison without trials 
nearly 50 detainees at the Guantánamo Bay military prison in Cuba because a 
high-level task force has concluded that they are too difficult to prosecute but 
too dangerous to release, an administration official said on Thursday.

The Washington Post says that these decisions "represent the first time that the 
administration has clarified how many detainees it considers too dangerous to 
release but unprosecutable because officials fear trials could compromise 
intelligence-gathering and because detainees could challenge evidence obtained 
through coercion."  Once that rationale is accepted, it necessarily applies not 
only to past detainees but future ones as well:  the administration is claiming 
the power to imprison whomever it wants without charges whenever it believes 
that -- even in the face of the horrendously broad "material support for 
terrorism" laws the Congress has enacted -- it cannot prove in any tribunal that 
the individual has actually done anything wrong.  They are simply decreed by 
presidential fiat to be "too dangerous to release."  Perhaps worst of all, it 
converts what was once a leading prong in the radical Bush/Cheney assault on the 
Constitution -- the Presidential power to indefinitely imprison people without 
charges -- into complete bipartisan consensus, permanently removed from the 
realm of establishment controversy.

There are roughly 200 prisoners left at the camp, which means roughly 25% will 
be held without any charges at all.  Using the administration's perverse 
multi-tiered justice system, the rest will either be tried in a real court, sent 
to a military commission or released.  What this means, among other things, is 
that the President's long-touted policy of closing Guantanamo is a total sham: 
the essence of that "legal black hole" -- indefinite detention without charges 
-- will remain fully in place, perhaps ludicrously and dangerously shifted to a 
different locale (onto U.S. soil) but otherwise fully in tact.  The U.S. Supreme 
Court ruled in 2008 that the Military Commissions Act unconstitutionally denied 
the right of habeas corpus to Guantanamo detainees -- a principle the Obama 
administration has vigorously resisted when it comes to Bagram detainees -- but 
mere habeas corpus review does not come close to a real trial, which the Bill of 
Rights guarantees to all "persons" (not only "Americans") before the State can 
keep them locked in a cage.

Numerous Democrats have spent the year justifying Obama's desire for indefinite 
detention with dubious excuses that would have been unthinkable to hear from 
them during the Bush years.  I addressed all of those excuses in full back in 
May, here.  As but one example, the claim most commonly cited to justify Obama's 
actions -- these detainees can't be convicted because the evidence against them 
is "tainted" by torture -- is:  (a) completely unproven; (b) completely immoral 
(it's one of the longest-standing principles of Western justice that 
tortured-obtained evidence can't be used to justify imprisonment); and (c) 
completely contradictory (Democrats spent years claiming, and still do, that 
torture doesn't work and produces unreliable evidence; if that's true, who could 
possibly justify indefinitely imprisoning someone based on torture-obtained -- 
i.e., inherently unreliable -- evidence?).  Whatever else is true, both Obama's 
policy and the rationale -- we must imprison Terrorists without charges because 
there's no evidence to convict them but they're somehow still deemed too 
dangerous to release -- is exactly what the Bush/Cheney faction endlessly 
repeated to justify its "legal black hole."

But no matter.  If there's one thing we've seen repeatedly all year long, it's 
that many Democrats simply do not believe in the axiom best expressed by The New 
York Times' Bob Herbert when he said that "Americans should recoil as one 
against the idea of preventive detention."   As Herbert wrote:  "policies that 
were wrong under George W. Bush are no less wrong because Barack Obama is in the 
White House."  That precept should be too self-evident to require expression and 
yet is widely rejected.  Hence, exactly that which very recently was condemned 
as "a dungeon, a gulag, a tropical purgatory, and a black-hole embarrassment" is 
now magically transformed into a beacon of sober pragmatism from a man -- a 
Constitutional Scholar -- solemnly devoted to restoring America's Standing and 
Values.

http://www.commondreams.org/view/2010/01/22-5

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