When President Obama signed the National Defense Authorization Act (NDAA), he virtually guaranteed that the Guantanamo Bay prison will be with us for the indefinite future. So the Obama campaign pledge to close Guantanamo within one year of becoming president, which looked so easy to fulfill, because Guantanamo had become such a despised chamber of horrors internationally and an acute embarrassment to the U.S. public, is now a blown opportunity.
Provisions of the NDAA include a ban on any transfer of Guantanamo detainees to a U.S. prison, even for criminal trial, and the NDAA radically restricts the president's authority to transfer detainees to foreign countries. What this means is that more than half of the remaining detainees -- 89 of 171 -- who have been fully cleared by a joint review, will remain in limbo at Guantanamo, forming a continuing witness to the mockery the U.S. has made of the rule of law.
A conspiracy theorist could make a good case that the Congress, the courts and the general public -- with an assist from a blundering president -- have joined in a conspiracy to keep Guantanamo as an ongoing black mark on American jurisprudence. The DC Circuit Court allows indefinite detention based on unreliable intelligence reports, while denying the detainees an opportunity to confront or rebut the reports. The U.S. Supreme Court has squandered the good press it got for reintroducing the rule of law to Guantanamo by declining to intervene to give real force to prior rulings. We now know how badly the Hamdi decision was written, when both sides in the Senate debate over whether U.S. citizens should be excluded from the reach of the NDAA, cited Hamdi as buttressing their respective arguments.
President Obama was earlier depicted in this blog piece as "blundering;" however, his actions in blocking all efforts at accountability for the abuses committed at Guantanamo, border or even reach the level of obstruction of justice.
The final actor in this tabloid of a de facto, though not actual conspiracy, is the general public, which 60 percent in a recent CNN poll favored keeping open, must be attributed in part to the failure of President Obama to make a compelling case either to Congress or the public why it is important to close Guantanamo and what the prison symbolized.
Showing posts with label indefinite detention. Show all posts
Showing posts with label indefinite detention. Show all posts
Wednesday, March 21, 2012
Monday, December 19, 2011
King George Rules Again in the Good Old USA
The American colonies fought a revolutionary war to get out from under the tyrannical rule of King George III. Given the power of the U.S. president to assassinate U.S. citizens and hold then indefinitely without trial, we seem to have created a modern King George III. Writing in Salon on December 16, 2011, Glenn Greenwald has done an outstanding job of dissecting the two major pieces of legislation on indefinite detention: the 2001 Authorization to Use Military Force (AUMF) and the 2012 National Defense Authorization Act (NDAA).
Both President Bush and President Obama have argued that the AUMF gives them the implicit power to detain indefinitely and to use force widely. Greenwald says that "the Obama administration justifies the ongoing bombing of Yemen and Somalia and its killing of people based on the claims that they are support groups that did not exist at the the time of 9/!!." Contrary to this broad interpretation of the AUMF, which the courts have generally accepted, Greenwald argues that the AUMF specifically confined the president to use force against those who: 1) helped perpetuate the 9/11 attack; or 2) harbored the perpetrators.
What the NDAA has done is broaden and codify into law the AUMF. Section 1021 of the NDAA defines "a covered person" as "a person who was part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." Once more, Section 1021 (b) empowers the president to detain anyone "accused" of the acts in question, without trial, until the end of the hostilities.
Section 1021 further reads: "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens, or any other persons who are captured or arrested in the United States." This section would seem to restrict detention to those captured or arrested overseas; however, Section 1022 muddies the waters, as it states that anyone who is a member of a targeted group as defined above, or participates in the planning or carrying out of an attack, must be held in military custody (absent a presidential waiver) pending disposition under the law of war. Glenn Greenwald reads 1022 as making detention of a U.S. citizen optional, at best. Senator Diane Feinstein reads it the same way, as she tried to get enacted an amendment to make it crystal clear that indefinite detention would not apply to a U.S. citizen. He attempt to amend was defeated, as was an amendment to delete the offending sections from the NDAA.
President Barack Obama had vowed to veto the NDAA if it came to him with language authorizing the military to indefinitely detain persons. When he agreed to sign it, he said that the bill had been sufficiently changed to remove the objectionable language. He hasn't identified the changes nor has the media pressed him on it. The main attempts to amend the bill on the Senate floor were defeated. It would seem, then, that President Obama accepted language that he had said would necessitate a veto.
The weirdest scene on the Senate floor was when Senator Carl Levin was arguing that it was the Obama administration, not him as a main sponsor, who didn't want U.S. citizens excluded from the scope of the bill.
Both President Bush and President Obama have argued that the AUMF gives them the implicit power to detain indefinitely and to use force widely. Greenwald says that "the Obama administration justifies the ongoing bombing of Yemen and Somalia and its killing of people based on the claims that they are support groups that did not exist at the the time of 9/!!." Contrary to this broad interpretation of the AUMF, which the courts have generally accepted, Greenwald argues that the AUMF specifically confined the president to use force against those who: 1) helped perpetuate the 9/11 attack; or 2) harbored the perpetrators.
What the NDAA has done is broaden and codify into law the AUMF. Section 1021 of the NDAA defines "a covered person" as "a person who was part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." Once more, Section 1021 (b) empowers the president to detain anyone "accused" of the acts in question, without trial, until the end of the hostilities.
Section 1021 further reads: "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens, or any other persons who are captured or arrested in the United States." This section would seem to restrict detention to those captured or arrested overseas; however, Section 1022 muddies the waters, as it states that anyone who is a member of a targeted group as defined above, or participates in the planning or carrying out of an attack, must be held in military custody (absent a presidential waiver) pending disposition under the law of war. Glenn Greenwald reads 1022 as making detention of a U.S. citizen optional, at best. Senator Diane Feinstein reads it the same way, as she tried to get enacted an amendment to make it crystal clear that indefinite detention would not apply to a U.S. citizen. He attempt to amend was defeated, as was an amendment to delete the offending sections from the NDAA.
President Barack Obama had vowed to veto the NDAA if it came to him with language authorizing the military to indefinitely detain persons. When he agreed to sign it, he said that the bill had been sufficiently changed to remove the objectionable language. He hasn't identified the changes nor has the media pressed him on it. The main attempts to amend the bill on the Senate floor were defeated. It would seem, then, that President Obama accepted language that he had said would necessitate a veto.
The weirdest scene on the Senate floor was when Senator Carl Levin was arguing that it was the Obama administration, not him as a main sponsor, who didn't want U.S. citizens excluded from the scope of the bill.
Friday, December 16, 2011
Constitution-Trashing by a Constitution Scholar
The National Defense Authorization Act of 2012 (NDAA) would expand the military's authority to deny accused terrorists arrested within the country the right to a trial and could subject them to indefinite detention. The NDAA applies to those "accused," not convicted. Thus, the radical expansion of power that has defined U.S. policy since the attacks of 9/11 will be augmented.
President Obama had vowed to veto the NDAA if it included the arrest and detention provisions, not on the basis that it was an affront to the Constitution, but because he felt it would undermine the way the executive branch was dealing with terrorists. On or about December 15, 2011, Obama withdrew the veto threat, citing changes made in the legislation.
If anyone opposed to holding people, perhaps indefinitely, without trial, sees the Supreme Court as a possible savior, Christopher Anders, senior legislative counsel of the ACLU, throws cold water on that hope. Anders says that when the legislative and executive branches of government are working together, it gets a lot more deference from the courts; therefore, an Obama veto of this thrashing of the due process provisions in the Constitution would have increased the chances of an overturn in the courts.
Although Section 1032 of the NDAA exempts U.S. citizens and lawful resident aliens from the mandate of detention, it still remains an option.
Section 1031 still permits the government to indefinitely detain American accused of terrorism in military custody. Hamdi v. Rumsfeld ruled that Yaser Esam Hamdi could not be held indefinitely without habeas release but it ruled only that detainees could challenge their status as an "enemy combatant," which itself was a case of the executive branch legislating a new category of criminal. An indication of how sloppily written was Hamdi v. Rumsfeld is that both sides in the indefinite detention debate on the Senate floor cited it as supporting their case.
Hamdan v. Rumsfeld did not grant access to the courts, instead it said that military tribunals must comport with treaty obligations and the Uniform Code of Military Justice. The Supreme Court could have ruled that military tribunals were not an appropriate venue for trying civilians, thus preventing the Congress from authorizing them after engaging in a little tidying up. A previous blog pointed out that the Military Commission Act of 2006 allows the president to empower the CIA to torture under a national security rationale.
Perhaps the weirdest spectacle on the Senate floor was Senator Carl Levin (D-M) energetically making a case that it was the Obama administration that was insisting that an exemption for U.S. citizens be taken out of the bill. Apparently, it was Senator Diane Feinstein (D-CA) who was able to get an exemption reinstated, subject to the caveats noted above.
President Obama announced in early 2010 that at least 50 detainees at Gitmo would be held without charging or trying them.
The FBI's "Good" Muslims
Writing in the September 19, 2011 The Nation, Arun Kundnani says of the FBI's "good" Muslims: "Local authorities have worked in concert with intelligence agencies to establish widespread networks of informants, to place mosques under surveillance and to launch "pre-emptive" prosecutions, frequently involving schemes that, critics charge, have been more successful in trapping disaffected individuals than in netting actual terrorists."
Kundnani quotes Birmingham (Alabama) City Council member Salma Yaqoob as follows: "By promoting and recognizing only those Muslims who toe the line, government policy is serving to strengthening the hands of the genuine extremists, those who say that our engagement in the democratic process is pointless or wrong... .
"Muslim organizations that take a civil rights stand and are then rejected as partners and vilified as conveyors of the 'extremist' ideas that supposedly make people into terrorists."
The campaigning Barack Obama said he would rein in the sprawling intelligence complex: the President Obama should try reining in the FBI in its targeting of Muslims.
President Obama had vowed to veto the NDAA if it included the arrest and detention provisions, not on the basis that it was an affront to the Constitution, but because he felt it would undermine the way the executive branch was dealing with terrorists. On or about December 15, 2011, Obama withdrew the veto threat, citing changes made in the legislation.
If anyone opposed to holding people, perhaps indefinitely, without trial, sees the Supreme Court as a possible savior, Christopher Anders, senior legislative counsel of the ACLU, throws cold water on that hope. Anders says that when the legislative and executive branches of government are working together, it gets a lot more deference from the courts; therefore, an Obama veto of this thrashing of the due process provisions in the Constitution would have increased the chances of an overturn in the courts.
Although Section 1032 of the NDAA exempts U.S. citizens and lawful resident aliens from the mandate of detention, it still remains an option.
Section 1031 still permits the government to indefinitely detain American accused of terrorism in military custody. Hamdi v. Rumsfeld ruled that Yaser Esam Hamdi could not be held indefinitely without habeas release but it ruled only that detainees could challenge their status as an "enemy combatant," which itself was a case of the executive branch legislating a new category of criminal. An indication of how sloppily written was Hamdi v. Rumsfeld is that both sides in the indefinite detention debate on the Senate floor cited it as supporting their case.
Hamdan v. Rumsfeld did not grant access to the courts, instead it said that military tribunals must comport with treaty obligations and the Uniform Code of Military Justice. The Supreme Court could have ruled that military tribunals were not an appropriate venue for trying civilians, thus preventing the Congress from authorizing them after engaging in a little tidying up. A previous blog pointed out that the Military Commission Act of 2006 allows the president to empower the CIA to torture under a national security rationale.
Perhaps the weirdest spectacle on the Senate floor was Senator Carl Levin (D-M) energetically making a case that it was the Obama administration that was insisting that an exemption for U.S. citizens be taken out of the bill. Apparently, it was Senator Diane Feinstein (D-CA) who was able to get an exemption reinstated, subject to the caveats noted above.
President Obama announced in early 2010 that at least 50 detainees at Gitmo would be held without charging or trying them.
The FBI's "Good" Muslims
Writing in the September 19, 2011 The Nation, Arun Kundnani says of the FBI's "good" Muslims: "Local authorities have worked in concert with intelligence agencies to establish widespread networks of informants, to place mosques under surveillance and to launch "pre-emptive" prosecutions, frequently involving schemes that, critics charge, have been more successful in trapping disaffected individuals than in netting actual terrorists."
Kundnani quotes Birmingham (Alabama) City Council member Salma Yaqoob as follows: "By promoting and recognizing only those Muslims who toe the line, government policy is serving to strengthening the hands of the genuine extremists, those who say that our engagement in the democratic process is pointless or wrong... .
"Muslim organizations that take a civil rights stand and are then rejected as partners and vilified as conveyors of the 'extremist' ideas that supposedly make people into terrorists."
The campaigning Barack Obama said he would rein in the sprawling intelligence complex: the President Obama should try reining in the FBI in its targeting of Muslims.
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