The fact remains that the military tribunals (or courts) now proposed by both the Bush and Obama administrations are indeed in keeping with international law and historical norms for such situations.
The Supreme Court ruled 5-3 this morning that "the military commission at issue lacks the power to proceed because it violates both the (Uniform Code of Military Justice) and the four Geneva Conventions in 1949.
President Obama actually delivered two speeches yesterday. One speech that could have been billed as a ballad to the Constitution -- a proclamation of American values, a repudiation of the lawless behavior of the last administration. And another speech -- announcing a radical new claim of presidential power that is not afforded by the Constitution and that has never been attempted in American history, even by George W. Bush and Dick Cheney.
Remarkably, President Obama made both of those speeches simultaneously. Standing inside the National Archives, in front of the actual, original Constitution, President Obama delivered a blistering critique of the Bush administration -- in which he called their legacy literally a mess.
Quote:Our government made a series of hasty decisions. Poorly planned, haphazard approach. Too often, we set those principle as side as luxuries that we could no longer afford. Our government made decisions based on fear rather than foresight. The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable.
An ad hoc legal approach for fighting terrorism that was neither effective nor sustainable. Ouch!
Then, moments later, he announced his own -- his own ad hoc legal approach for fighting terrorism. President Obama proposed something new -- something called prolonged detention. Doesn't sound that bad, right? Prolonged detention.
Did you ever see the movie "Minority Report"? It was based on a Phillip K. Dick short story. It came out in 2002. It starred Tom Cruise, remember? He played a police officer in something called the "Department of Pre-Crime." Pre-Crime is where people are arrested and incarcerated to prevent crimes that they have not yet committed.
You didn`t do anything, but you`re going to. Future murder. Creepy, right? Putting somebody in jail not for what they have done but for what you`re very sure they`re going to do?
Quote:There may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.
We`re not prosecuting them for past crimes, but we need to keep them in prison because of our expectation of their future crimes.
Quote:Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again.
Prevented. We will incarcerate people preventively -- preventive incarceration. Indefinite detention without trial. That`s what -- that`s what this is. That`s what President Obama proposed today if you strip away the euphemisms.
One civil liberties advocate told "The New York Times" today, quote, "We`ve known this was on the horizon for many years, but we were able to hold it off with George Bush. The idea that we might find ourselves fighting with the Obama administration over these powers is really stunning."
And it is stunning. Particularly to hear President Obama claim the power to keep people in prison indefinitely with no charges against them, no conviction, no sentence, just imprisonment -- it`s particularly stunning to hear him make that claim in the middle of a speech that was all about the rule of law.
Quote:But we must do so with an abiding confidence in the rule of law. Our government was defending positions that undermine the rule of law. To ensure that they are in law with the rule of law.
How can a president speak the kind of poetry that President Obama does about the rule of law and call for the power to indefinitely, preventively imprison people because they might commit crimes in the future? How can those two things co-exist in the same man, even in the same speech?
Well, that brings us to the self-consciously awkward, embarrassing part of this speech today. After condemning the Bush administration for what he called their ad hoc legal strategy for trying to make things seem legal that patently weren`t, this is what President Obama proposed.
Quote:My administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall into this category. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
Our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. 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.
And so going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
You`ll construct a legal regime to make indefinite detention legal. You will -- what did he say? -- develop an appropriate legal regime. So you can construct a whole new system outside the courts, even outside the military commissions, so that you can indefinitely imprison people without charges and you`ll build that system from scratch. What`s that somebody said about ad hoc legal strategies?
Just for context here, in the United Kingdom, where there isn`t even a Bill of Rights, there`s been a major debate about whether people can be held in preventive detention. Former British Prime Minister Tony Blair wanted three months to be the outer limit for how long anyone could be held. There was a big political fight about it. Parliament ended up limiting that power to 28 days. Twenty-eight days is still the longest period of preventive detention that`s allowed under law in any comparable democracy any where in the world.
How long would President Obama`s proposed preventive, indefinite detention last? Well, he`s not saying yet, but here`s how he defines the threat that he says makes indefinite detention necessary.
Quote:Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now -- and in all probability -- 10 years from now.
Ten years from now. So, you could get arrested today and locked up without a trial, without being convicted, without being sentenced for, say, 10 years -- until the threat of your future criminal behavior passes? "Prolonged detention," he`s calling it.
This is a beautiful speech from President Obama today, with patriotic, moving, even poetic language about the rule of law and the Constitution -- and one of the most radical proposals for defying the Constitution that we have ever heard made to the American people.
As you can tell, I`m having a hard time disguising my own feelings about this prolonged detention announcement today. How do you see it? Do you actually see this as a radical proposal?
Debra L A W and Parados don't know sh.t about what BO is doing.
* * * Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct....
* * * the Court finds Padilla has alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights. . . . Padilla alleges with specificity that Yoo was involved in the decision to detain him and created a legal construct designed to justify the use of interrogation methods that Padilla alleges were unlawful.
* * * The allegation that Padilla was denied any access to counsel for nearly two years is sufficient to state a claim for violation of his right to access to courts....
* * *Padilla alleges that Yoo bears responsibility for the conditions of his confinement due to his drafting opinions that purported to create legal legitimacy for such treatment. Therefore, although Padilla’s claim must be analyzed under the Due Process provision of the Fourteenth Amendment and not pursuant to the Eighth Amendment, the Eighth Amendment sets the bar below which the treatment of detainees should not fall.
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Once the Court finds that the facts would show the violation of a constitutional right, the next inquiry is to determine “whether the right was clearly established.” Saucier, 533 U.S. at 202. Yoo argues that because no federal court has afforded an enemy combatant the kind of constitutional protections Padilla seeks in this case, there was no violation of Padilla’s clearly established constitutional rights. The Court finds this argument unpersuasive....
Last week, President Obama’s Justice Department filed a legal brief against same sex marriage in which it compared gay unions to incestuous ones and that of an underage girl " in the sense that states have the right to not recognize marriages that are legal in other states or countries.
The timing of the brief, which the president of the leading gay and lesbian rights organization said caused his community “pain,” is awkward, given that next Thursday, June 25, the Democratic National Committee is hitting up the lesbian, gay, bisexual and transgender (LGBT) community for cash in a fundraiser featuring Vice President Biden.
As John Aravosis at AmericaBlog reports, gay donors, outraged at the legal brief, are withdrawing their support from the event.
The treasurer of the DNC, Andrew Tobias, finds himself distancing himself from the brief, as Ben Smith of Politico reports.
"If this debacle of a brief represented the president's views, I'd boycott too," Tobias said in an e-mail. But Tobias insisted that he “personally totally believe(s) in the president.”
David Mixner, a former adviser to President Clinton, is not so sold, writing that the brief is a “sickening document” that “could have been written by the Rev. Pat Robertson. Using the worst of stereotypes, it intimates that we don't have constitutional guarantees, invokes scenarios of incest, of children and advocates that we don't have the same rights as others who have struggled for civil rights.”
Mixner says many scholars don’t think the Obama administration needed to defend the Defense of Marriage Act, which states that states don’t have to accept same sex marriages from other states. Some disagree. But “to a person, they say that the response is way out of line, totally unnecessary and goes far beyond anything required. They all agree that if the Department of Justice felt they had to respond, a simple, few-paged brief on the very limited issue before the Federal Court would have been all that was necessary.”
The brief, Mixner argues, “undercuts every conceivable argument that the LGBT community would use to fight for the repeal of DOMA. Right-wing nut cases can now just simply quote horrible stuff from this hateful brief and proclaim loudly it was filed by the Obama Justice Department.”
For that reason, Mixner withdrew his support from the DNC fundraiser.
As did big Democratic gay donors Andy Towle and Alan Van Capelle, executive director of the Empire State Pride Agenda and Foundation.
Aravosis is mad, criticizing "this rather ill-timed and inappropriate Democratic effort to milk money from our community at the same time Democrats are equating us with incest and not lifting a finger on any of our legislation priorities in Congress or the White House. It's not awfully clear why any gay person would give a Democrat a dime ever again.”
WASHINGTON " The Obama administration will continue the Bush administration’s practice of sending terrorism suspects to third countries for detention and interrogation, but pledges to closely monitor their treatment to ensure that they are not tortured, administration officials said Monday.
Human rights advocates condemned the decision, saying that continuing the practice, known as rendition, would still allow the transfer of prisoners to countries with a history of torture. They said that promises from other countries of humane treatment, called “diplomatic assurances,” were no protection against abuse.
“It is extremely disappointing that the Obama administration is continuing the Bush administration practice of relying on diplomatic assurances, which have been proven completely ineffective in preventing torture,” said Amrit Singh, a lawyer with the American Civil Liberties Union, who tracked rendition cases under President George W. Bush.
Ms. Singh cited the case of Maher Arar, a Syrian-born Canadian sent in 2002 by the United States to Syria, where he was beaten with electrical cable despite assurances against torture.
WASHINGTON " Despite publicly breaking with an American private security company in Iraq, the State Department continues to award the company, formerly known as Blackwater, more than $400 million in contracts to fly its diplomats around Iraq, guard them in Afghanistan, and train security forces in antiterrorism tactics at its remote camp in North Carolina.
The contracts, one of which runs until 2011, illustrate the extent to which the United States government remains reliant on private contractors like Blackwater, now known as Xe (pronounced zee) Services, to conduct some of its most sensitive operations and protect some of its most vital assets.
Disclosures that the Central Intelligence Agency had used the company, which most people still call Blackwater, to help with a covert program to assassinate leaders of Al Qaeda have touched off a storm in Washington, with lawmakers demanding to know why this kind of work is being outsourced. New details about Xe’s involvement in the covert program emerged Friday.
Major ruling against Ashcroft highlights evils of preventive detention
Yesterday -- in a very significant decision (.pdf) written by Bush-43-appointed federal judge Milan Smith and joined by a Reagan-appointed judge -- the Ninth Circuit Court of Appeals allowed a lawsuit to proceed that was brought against John Ashcroft for the illegal and unconstitutional detention of American Muslims. The suit was brought by Abdullah al-Kidd, an American citizen of African-American descent who converted to Islam. Al-Kidd was arrested, detained under abusive conditions, and then had his movements and freedoms severely restricted for sixteen months despite no evidence that he had done anything wrong.
The suit arises out of a policy established by Ashcroft of abusing the "material witness" statute, which authorizes the detention of key witnesses to a criminal case where it's likely they will be unavailable to testify in the absence of their pre-trial detention. Ashcroft used that statute as a pretext for arresting American Muslims where there was insufficient evidence to establish probable cause they had committed a crime (the standard required to justify their arrest). In other words, Ashcroft's DOJ would pretend that they wanted to detain Muslim citizens because they were "material witnesses" to a crime, when the real reason was that they suspected them of Terrorist connections and wanted to arrest and investigate them but lacked the evidence required by law to justify an arrest -- i.e., they wanted to "preventively detain" them in the absence of any criminal wrongdoing.
The real significance of this case is that it highlights the dangers and evils of preventive detention -- an issue that will be front and center when Obama shortly presents his proposal for a preventive detention scheme, something he first advocated in May. What Ashcroft is accused of doing illegally is exactly the same thing Obama wants the legal power to do (except that Obama's powers would presumably apply to foreign nationals, not citizens): namely, order people imprisoned as Terrorist suspects -- "preventively detained" -- where there is insufficient evidence to prove they committed any crime.
I really urge everyone to read the section of the court's decision which sets forth in a concise, clear and non-legalistic manner the facts of what was done to al-Kidd by the DOJ: it's just 3 pages long, beginning on page 12271 ("Facts and Procedural Background") through 12274 (the three pages after that, also highly recommended, detail Ashcroft's culpability in creating this nefarious, illegal detention scheme). Please just go read this 3-page section laying out the facts of what was done to al-Kidd's life and what preventive detention powers allow the Government to do. Anyone who supports Obama's call for a preventive detention scheme is, by definition, supporting things like this (though, if anything, what happened to al-Kidd -- as horrible as it is -- is short and innocuous compared to what a "prolonged detention" scheme would permit: years of indefinite, charge-free imprisonment).
* * *
Rev. Pat Robertson
