Obama’s Liberty Problem

Why Indefinite Detention by Executive Order Should Scare the Hell Out of People

The right to liberty is one of the foundation rights of a free people.  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.

Advisors in the Obama administration have floated the idea of creating a special new legal system to indefinitely detain people by Executive Order.  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.

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.

The practical, logical, constitutional and human rights problems with the proposal are uncountable.

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

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?

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?

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.

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.

“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).

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.

For hundreds of years judges and legislatures and advocates for justice have struggled to create protections for our liberty.  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.

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.

Further, preventive detention also violates international law, specifically the International Covenant on Civil and Political Rights (ICCPR), article 9.

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.

Vince is the Executive Director at the Center for Constitutional Rights (CCR). Bill is Legal Director of CCR and law professor at Loyola University New Orleans. You can reach Bill at Quigley77@gmail.com Read other articles by Bill Quigley and Vince Warren.

7 comments on this article so far ...

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  1. bozh said on December 24th, 2010 at 8:38am #

    “The right to liberty is one of the foundation rights of a free people. 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 americans”.

    alas, we have not been free anywhere on planet until just millennia ago. we have been for a long time interdependent and becoming dependent, say, 10 k yrs ago.

    so, saying that we were, say, 50 yrs ago, free [in]dependencies, does not make any sense to me. for, one label clashes with the other.
    one cannot be free and be a [in]dependency-in-whatever-degree.

    and, if we were interdependent, then, the label “free” for people in such a structure society amounts to a repeat of same idea.

    and, if we had laws, say, in india, and not diktats imposed from above, once again, the label “free” appears superfluous.

    americans have always been ruled by ‘laws’; written by supremacists for serfs.
    now, one can be a [un]wittingly willing serf or not, but, once again calling serfs “free” servants amounts to quite a warp of words.

    and, since u.s appears a lawless region [yes, region– and not a country; ruled by mafia], obama is acting in a lawless way just like every prez had done before him.

    one can be only in two ways: interdependent-to-a degree or dependent-to-a degree.
    a prez may be deemed as one of the most interdependent regionals– a house person most dependent.
    even a hobo, bless herhis interdependence, appears more interdependent than a miner, fisher, tiller, soldier.

    a hobo or homeless p. lives from what people throw away! i call that a positive interelationship or structure of existence.
    it is also very good for the environment! tnx

  2. bozh said on December 24th, 2010 at 11:22am #

    “now, one can be a [un]wittingly willing serf or not, but, once again calling serfs “free” servants amounts to quite a warp of words.”
    this needs clarification:
    a person being [un[wittingly willing serf or not can be called free even, tho, it does not seem to matter or make sense.

    for one thing, nobody wants to be knowingly a servant or subservient to anyone.
    it is just that americans are conditioned to evaluate that they were free or that they participated in lawmaking.
    to outsiders, they were never ever free nor participating in the governance; they merely thought so.

    americans were always free to gamble, lie, cheat, swindle, deceive, move the ass about, believe in gods-spirits, exploit, feel superior, etc.. and that remains.
    this analyses is valid for many other ethnicities; usans r not an exception. tnx

  3. John Andrews said on December 25th, 2010 at 12:16am #

    “Advisors in the Obama administration have floated the idea of creating a special new legal system to indefinitely detain people by Executive Order.”

    Where is the proof that this is being done?

    Whilst I don’t doubt it’s quite possible a bit of proof would be nice.

  4. Max Shields said on December 25th, 2010 at 10:29am #

    While I, like you Mr. Andrews, would like to see more references in the DV posts – and particular accusations that while they appear plausible, don’t always have more than innuendo wrapped around it. However, it does appear that the MSM has picked up on this as well, namely ABC news:

    In a speech at the National Archives in May 2009, President Obama acknowledged that his way forward in dealing with the terrorist threat would include indefinite detention.

    The Obama admin more than admits to this, it looks like it’s moving forward in a public way:

  5. andy.turner.pacsurveys said on December 25th, 2010 at 9:56pm #

    subjugation is evident with the new indefinite detention scheme

  6. Mulga Mumblebrain said on December 26th, 2010 at 2:31pm #

    Aside from the ludicrous assertion that this Kafkaesque measure is against US ‘traditions’, when it most certainly is not, it’s lovely to watch the contortions and listen to the obfuscations and, increasingly, silence of the Obama Hope Fiend suckers. After two years of a regime indistinguishable from that of Bush (save, as Berlusconi noted, for the cappo’s lovely tan)you’d think by now that at least a few of the prominent Obama flunkeys would have the guts, honesty and basic decency to get up and admit that they were dudded. In my opinion Obama is worse, concretely, than Bush, worse in his betrayals and worse in that his lame duck years will witness total collaboration with the deranged Republican zealots he helped elect. You can expect much more aggression, more drone murders (can there, conceivably, be a viler hypocrite than one, whose hands are caked in the blood of drone victims, posing as a moral authority, and condemning suicide bombers, probably stooges of Western intelligence, who target the same long-suffering people?) more kowtowing to the Chosen Ones, more regressive social policy, more tax cuts for the rich, more encircling and hectoring China, Russia and Iran, more meddling in South America, more sabotage of climate change action, all ameliorated by photo-ops, where he can grin to his heart’s content, utter a few mendacious platitudes and the bien pensant ‘progressives’ can anaesthetise their minds and consciences by congratulating themselves on how racially broadminded they are as to support a ‘black’ man as President.

  7. shabnam said on December 26th, 2010 at 7:04pm #

    UN General Assembly voted early Friday to hold a summit commemorating the 10th anniversary of the contentious UN conference on RACISM that was dominated by clashes over the Middle East and the legacy of slavery.

    The United States voted against the Durban III resolution. In a statement issued following the vote, US Ambassador to the U.N. Susan Rice said: “We voted ‘no’ because the Durban Declaration process has included ugly displays of intolerance and anti-Semitism, and we do not want to see that commemorated,” the statement said. “The United States is fully committed to upholding the human rights of all individuals and to combating racial discrimination, intolerance and bigotry. We stand ready to work with all partners to uphold human rights and fight racism around the world.”
    Many African countries were directed to vote NO bythe US president , if that’s too much then stay away to avoid voting YES for Durban III. Please view the list to see how the world is divided between Zionist supporters where majority of them are referred to as ‘democratic’ West, including SWEDEN.
    I am shocked to see Macedonia, a Muslim country, has been forced to vote against Durban III to become another Micronesia where always is instructed to vote with US/Israel against other countries. Many have joined Micronesia since, including the criminal entity of Albania. It is very interesting to see Tajikistan, Uzbekistan also have been turned to PUPPET STATES , even Somalia, due to an instruction of a black president at the WH who serves the interest of Israel. These African counties have shown less courage than occupied AFGHANISTAN.
    On the other hand, the Latin American countries exibit more freedom of action compare to African states.

    In favour: Afghanistan, Algeria, Argentina, Azerbaijan, Bahrain, Bangladesh, Barbados, Belarus, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cambodia, Cameroon, Chile, China, Colombia, Congo, Costa Rica, Côte d’Ivoire, Cuba, Democratic People’s Republic of Korea, Djibouti, Dominican Republic, Ecuador, Egypt, Eritrea, Ethiopia, Fiji, Gabon, Ghana, Grenada, Guatemala, Guyana, Haiti, Honduras, India, Indonesia, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kuwait, Lao People’s Democratic Republic, Lebanon, Lesotho, Liberia, Libya, Madagascar, Malawi, Malaysia, Maldives, Mali, Mauritania, Mauritius, Mexico, Mongolia, Morocco, Myanmar, Namibia, Nepal, Nicaragua, Niger, Nigeria, Oman, Pakistan, Panama, Peru, Philippines, Qatar, Russian Federation, Rwanda, Saudi Arabia, Senegal, Singapore, Solomon Islands, South Africa, Sri Lanka, Sudan, Swaziland, Syria, Thailand, Timor-Leste, Togo, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Tuvalu, Uganda, United Arab Emirates, United Republic of Tanzania, Uruguay, Venezuela, Viet Nam, Yemen, Zambia, Zimbabwe.
    Against: Australia, Bulgaria, Canada, Czech Republic, Denmark, Estonia, Germany, Israel, Italy, Latvia, Lithuania, Marshall Islands, Micronesia (Federated States of), Netherlands, Palau, Poland, Romania, Slovakia, Sweden, The former Yugoslav Republic of Macedonia, United Kingdom, United States.
    Abstain: Albania, Andorra, Armenia, Austria, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, Finland, France, Georgia, Greece, Hungary, Iceland, Ireland, Japan, Liechtenstein, Luxembourg, Malta, Monaco, Montenegro, New Zealand, Norway, Portugal, Republic of Korea, Republic of Moldova, Samoa, Serbia, Slovenia, Spain, Switzerland, Tonga, Ukraine.
    Absent: Angola, Antigua and Barbuda, Bahamas, Cape Verde, Central African Republic, Chad, Comoros, Democratic Republic of the Congo, Dominica, El Salvador, Equatorial Guinea, Gambia, Guinea, Guinea-Bissau, Kenya, Kiribati, Kyrgyzstan, Mozambique, Nauru, Papua New Guinea, Paraguay, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, San Marino, Sao Tome and Principe, Seychelles, Sierra Leone, Somalia, Suriname, Tajikistan, Uzbekistan, Vanuatu.