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<font size=3><a href="http://www.counterpunch.org/" eudora="autourl">
http://www.counterpunch.org/<br><br>
</a></font><font size=2 color="#990000">December 23, 2010<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>Why Indefinite
Detention By Executive Order Should Scare the Hell Out of People<br><br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">
Obama's Liberty
Problem</b></font></h1><font face="Times New Roman, Times" size=4>By BILL
QUIGLEY and VINCE WARREN<br><br>
</font><font size=3>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.
<br><br>
Advisors in the Obama administration have floated the idea of creating a
special new legal system to indefinitely detain people by Executive
Order.<br><br>
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. <br><br>
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. <br><br>
The practical, logical, constitutional and human rights problems with
the proposal are uncountable. <br><br>
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. <br><br>
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? <br><br>
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?<br><br>
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. <br><br>
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. <br><br>
“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).<br><br>
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. <br><br>
For hundreds of years judges and legislatures and advocates for justice
have struggled to create protections for our liberty <b><i>[like
genocide against Indigenous people, slavery, colonialism and
war]</i></b>. 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. <br><br>
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.<br><br>
Further, preventive detention also violates international law,
specifically the International Covenant on Civil and Political
Rights (ICCPR), article 9. <br><br>
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. <br><br>
<b>Vince Warren</b> is the Executive Director at the Center <br>
for Constitutional Rights (CCR). <br><br>
<b>Bill Quigley</b> is Legal Director of CCR and law <br>
professor at Loyola University New Orleans. You can reach Bill at <br>
<a href="mailto:Quigley77@gmail.com">Quigley77@gmail.com</a><br><br>
<br><br>
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