Obama Formalizes His Indefinite Detention Black Hole
Hot on the heels of the big DADT victory in Congress, which pretty much got passed in spite of Obama instead of because of him, comes this giant lump of coal for the Christmas stockings all those who believe in human rights, due process, the Constitution, and moral and legal obligations under international treaties and norms. From the Washington Post:
The Obama administration is preparing an executive order that would formalize indefinite detention without trial for some detainees at the U.S. military prison at Guantanamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration, U.S. officials said.
The administration has long signaled that the use of prolonged detention, preferably at a facility in the United States, was one element of its plan to close Guantanamo. An interagency task force found that 48 of the 174 detainees remaining at the facility would have to be held in what the administration calls prolonged detention.
This is certainly not shocking, as the Obama Administration long ago indicated there were at least 48 or so detainees they felt too dangerous to release and their cases unable to be tried in any forum, Article III or military commission. This is, of course, because the evidence they have on said cases is so tainted by torture, misconduct and lack of veracity that it is simply not amenable to any legal process. Even one of their kangaroo courts would castigate the evidence and the US government proffering it. That is what happens when a country becomes that which it once stood against.
Pro Publica fills in some of the details:
But the 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.
Nearly two years after Obama’s pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.
That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.
“It’s been clear for a while that the government would need to put in place some sort of periodic review, and that it would want it to improve on the annual review procedures used during the previous administration,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.
Unfortunately, it does not appear as if this ballyhooed “review” amounts to anthing meaningful to the detainee. Although the detainee would have access to an attorney, it would obviously not be unfettered access, completely on the government’s self serving terms, there would be only limited access to evidence, and, most critically, the “review” would only weigh the necessity of the detention, not its lawfulness. In short, it is a joke.
So, the next time you hear Mr. Obama, or some spokesperson for his Administrations decrying the horrible Congress for placing a provision in legislation prohibiting the transfer of detainees to the US for civilian trial, keep in mind how quickly Mr. Obama rose up to take advantage of it – before the measure was even signed – and also keep in mind how Obama stood mute when he could have threatened a veto of such an inappropriate invasion of Executive Branch power by the Legislative Branch. Keep in mind that this is likely exactly what the Obama Administration wants to cover feckless and cowardly indecision and so they do not have to make the difficult political choice of actually protecting the Constitution and due process of law.
could their possibly be any challenge to this policy by the detainees’ attorneys? They seem to suggest it won’t affect the habeas cases but I don’t see how it can’t.
of course I haven’t seen the executive order so perhaps I should table that question.
Shorter Obama Administration message to Muslim detainees:
“Merry Christmas and Indefinite Detention for all!”
TPM had a story up yesterday
which indicated that the Democrats in the House put in the ban on funding for transfers from GITMO as a part of a deal on Don’t Ask Don’t Tell.
IOW – they replaced one DADT with another. It’s just now, we don’t ask, and the WH doesn’t tell what happens to Executive Branch torture victims.
Adam Serwer had a good analysis of that. An “ugly trade” he called it.
And I guess Eric Holder was out doing the morning show rounds – selling.
I guess for a guy who managed to sell his own soul, there aren’t many challenges left on the sales front.
Also, here’s an exchange from Gibbs’ press briefing earlier today about Guantanamo. Guess some “senior administration official” felt it was just be best to leak news about the exec order so Gibbs doesn’t have to answer these q’s anymore:
Q Robert, can you tell us what kinds of things the White House has been doing to try to get the Guantanamo trials and transfer ban language stripped out of the CR or the defense bill? Has the President been making any calls —
MR. GIBBS: Let me check and see if the President — what’s the President’s involvement on that. I know that the Attorney General has sent letters. I don’t know what else he’s done. I’d point you to DOJ. But I can check on what the President has done.
Q The White House and the whole administration has been sort of wrapped around the axle on the issue of the 9/11 trial for almost a year now. Wouldn’t it be relief to have a measure like this passed and therefore not have to make a decision about where to send those defendants and simply have the decision made for you, basically?
MR. GIBBS: No, I think we’re going to make a decision on what’s in the best interest of this country and what’s also constitutional.
Based on this forthcoming Executive Order, I have a hard time believing Gibbs was referring to the US Constitution.
Perhaps he was referring to the Repug Party Constitution or maybe one of Haley Barbour’s White Citizen Council Constitutions.
These fuckers wouldn’t know “Constitutional” if it hit them in the ass.
“These fuckers wouldn’t know “Constitutional” if it hit them in the ass.”
Actually, it seems they do know, since they are working overtime, using full-steam-ahead effort to tear it into pieces and destroy those pieces, making sure any little bits of scraps do not escape.
Obama clearly has a version of the Constitution the rest of us don’t have. Must be the one GW Bush left behind
The one drawn in crayon and signed “Dubya
I’m starting to wonder if the President is being held hostage by threats of some kind. To family members? Himself? Can he really have been like this beneath the surface all along? I just was looking at the NYT issues upon his electoral victory and his inauguration, and although I had my fears at the time (a life having had to go along to get along, straddling many fences, a foot in each camp, etc., and what that can do to leadership), I still can’t read this kind of behavior into that coverage in retrospect.
A teacher of Constitutional law, but zero interest in practicing it.
OT – Halliburton settles Nigeria Bribery Claims for $35M.
how the heck did it go from $00 million to $250 million to $35 million!?
Part of that $250 million settlement is recovering $130 million from a Swiss bank account, which Halliburton said it will still do. Nigeria should have asked for that money first
whoops! the $00 million should be $500 million
That is what happens when a country becomes that which it once stood against.
that is the crux of the matter.
Let me get this straight: we have FDL’s summary that Obama decided these prisoners are “too dangerous to release and their cases [are] unable to be tried in any forum, Article III or military commission.” Then we have the ProPublica discovery that “the White House alone will manage a review process for those it chooses to hold without charge or trial.”
So, what has Obama wrought? Some kind of Execu-Monarchical Star Chamber? Is he going to open a new Cuba Wing of the White House? Is he just completely crazy? Is he on drugs?
hat/tip to my legal beagle spouse: what Obama is proposing is actually an “American Gulag” as evil as Stalin’s. Gitmo has already been called a gulag by civil liberties groups, but this latest executive order farrago seems to make it official.