Justice: Obama Style

Friday, July 10, 2009

When the President announced he would be closing Guantanamo, one of my fears is that this move lacked substance and many of the more onerous War on Terrorism policies would continue. While torture seems to thankfully be discontinued, rendition still occurs. Even worse than this is news that the Administration will ignore due process in the results of trials if they don't agree with the outcome. Reason covered an exchange between Sen. Martinez (R-Fl) and Defense Department Counsel Johnson, where Johnson said:

You raised the issue of what happens if there's an acquittal, and in my judgment, as a matter of legal authority...if a review panel has determined this person is a security threat...and should not be released, if for some reason he is not convicted for a lengthy prison sentence, then as a matter of legal authority I think it's our view that we would have the ability to detain him.

The word show trial comes to mind. If some other panel can just ignore due process and detain a person, then you don't really have due process. Glenn Greenwald had a good analysis. He pointed out that:

In its own twisted way, the Bush approach was actually more honest and transparent: they made no secret of their belief that the President could imprison anyone he wanted without any process at all. That's clearly the Obama view as well, but he's creating an elaborate, multi-layered, and purely discretionary "justice system" that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded. And for those who -- to justify what Obama is doing -- make the not unreasonable point that Bush left Obama with a difficult quandary at Guantanamo, how will that excuse apply when these new detention powers are applied not only to existing Guantanamo detainees but to future (i.e., not-yet-abducted) detainees as well?

I can understand that the President is under a great deal of pressure from both sides of this debate...to protect the US from terrorists and to provide detainees with some level of due process. I just can't help thinking that subverting the Constitution to provide a feeling of safety is not the road we want to continue down. I was hoping that this Bush-era policy would not continue.


B Mac 9:14 AM  

The Supreme Court was pretty clear in Hamdi/Hamdan/Boumediene that the United States can hold enemy combatants until the end of the war, criminal proceedings notwithstanding. Criminal/tribunal actions were in order to ensure that we could hold them after the end of the "war on terror."

The true test, IMHO, will be whether the system Obama/Holder/gates creates has the type of Article III protections (evidentiary rules, ability to appeal, etc.) that will make it a "real" trial, or whether it will be a kangaroo court.

steves 9:35 AM  

The rules won't matter if some entity can just ignore the result and declare that person "dangerous" and hold them for as long as needed.

Hamdi and those other cases allow a person to challenge their status as enemy combatants. This helps, but I think a policy that allows the gov't to declare someone an enemy combatant in the never-ending GWOT is not one that should be ok under the Constitution. Do you?

Bob 9:43 AM  

Too many f'n lawyers around here these days dammit!

Speak broken english so the rest of us morans (sic) can understand you.

steves 10:17 AM  

Bush didn't worry about pesky things like the Constitution and due process. He would (and did) detain anyone that he thought was a danger to the US without any kind of trial or hearing. In some cases, they probably were dangerous. In others, they did nothing wrong. The Supreme Court placed some limits on this.

Obama said that he would implement hearings to deal with detainees so that they would be allowed some chance to challenge their detainment. Now the administration is saying that if a person is acquitted and they still believe they are dangerous, then they can be detained anyway. Kind of defeats the whole purpose.

B Mac 11:19 AM  

Okay Bob, we'll un-law-speak our discussion;

The court has said that, just like in any other war, we get to hold captured enemy soldiers for the length of the war.

However, the court has also held that the government can't just say "tag, you're a prisoner of war!!!" and throw you in jail. You have to be able to challenge the determination that you really are an "enemy combatant". If you are, the court grants wide deference to the government in terms of what they do with you. If not, you have a lot more rights.

We can try unlawful enemy soldiers (such as those who fight without uniforms, target civilians, don't fight for a recognized national government, etc.) for war crimes if we want. Those people don't have to be let out after the war is over.

B Mac 11:23 AM  

Steves, to answer your earlier question, I agree with you. To hold people for the length of the GWOT seems ridiculous. We may as well wait for the end of the War on Drugs, or the Lions' next Super Bowl appearance.

However, I do support holding, for example, al Qaeda in Iraq folks until the end of combat operation in Iraq, and old-school al Qaeda (al Qaeda Classic, perhaps?) members until the end of hostilities in Afghanistan. That may take a few years, but it isn't an amorphous "it aint over until we say it is" sort of a timeline.

steves 11:42 AM  

B Mac, that is reasonable and would be allowable under the Constitution and various treaties governing the conduct of war.

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