Saturday, June 27, 2009

For Your Consideration

This appeared in the New York Post this morning. Maybe our legal eagles (or Hawks) can shed some light on the last paragraph. Is this as ominous as it appears to be? Let's discuss...

Bam's new Gitmo flip

- Washington- The White House is considering issuing an executive order to indefinitely imprison a small number of current Guantanamo Bay detainees considered too dangerous to prosecute or release, two administration officials said yesterday.

No final decision has been made about the order, which would be the fourth major mandate by President Barack Obama to deal with how the United States treats and prosecutes terror suspects and foreign fighters.

One of the the officials said the order, if issued, would not take effect until
Oct. 1.

Congress has blocked the administration for spending money this year to imprison the detainees in the United States.

The administration also is considering asking Congress to pass new laws that would allow the indefinite detentions, the officials said. - AP

-New York Post 6/25/2009 Page 14


BevfromNYC said...

I will start by saying, I am always suspicious of obvious Saturday morning White House "trial balloons". Clinton used to do this to get a reaction before making decisions. Bush may have done this too, but it did not seem so obvious.

- Is this a change of policy toward Gitmo?

- Has Obama finally come to the conclusion that we actually do have dangerous terrorists in Gitmo that need to be kept locked up; and that Bush was correct without having to openly admit it?

And as to the " laws that would allow for the indefinite detentions".

- How could this impact US citizens and would it be at all Constitutional if the detainees are brought to onto US soil?

AndrewPrice said...

Wow! Good catch Bev. This raises so many issues.

First, I CANNOT imagine that an indefinite detention could be constitutional in any way.

If these guys are POWs, then they fall under the Geneva Convention, which has been adopted by the United States through Treaty, and thus is considered US law. The Geneva Convention allows POWs to be held without trial, subject to certain conditions (protections), during a state of war. After that, they MUST be returned to their home country or released.

The problem is that these guys were picked up in an informal war. Thus, they really aren't considered enemy combatants. We've been fudging on that one -- that's why people are upset about the whole Gitmo thing.

If they are not enemy combatants, then the special rules (protections) of the Geneva Convention do not apply. HOWEVER, the conventions then provide that these persons must be treated as they would if they were regular citizens. In other words, they deserve the same rights and procedures that would apply if you or I went out and shot at American soldiers at the mall. That means (1) right of trial, (2) right of appeal, (3) every other constitutional right, and (4) the right to have a sentence that is no worse than could be imposed on you or I.

The Constitution forbids indefinite detentions without a conviction. Indeed, you have a right to a speedy trial, and usually you need to be tried within a certain term of court or your case gets dismissed. You often have the right to bail. You have the right to appeal. You have the right to habeas corpus. You have the right to challenge an illegal sentence. And unless the sentence is death or true life imprisonment, you have a right to be released.

These rights come from several thousand years of human experience, and have been refined in this country for the last 200+ years, and they cannot be tossed aside by simple legislation, much less executive order -- the Constitution would need to be changed.

StanH said...

This is one of the things that people who opposed, “The Patriot Act,” were afraid of, future administrations, who knew it would be the next. We are now being governed by devout statist whose respect for The Constitution is none existent, they want to achieve their goals by fiat. It would not surprise me a bit if Barry reversed his position on Gitmo, this would be the only thing that he has done that I agree with.

AndrewPrice said...

Part 2 --

What is most shocking here is that:

(1) This is WAY worse than what the world hated Bush for. Bush was trying to treat them like enemy combatants without giving them the rights of enemy combatants.

Obama is trying to declare them not-enemy combatants and then deny then any legal status as all.

Basically, he is seeking to set up a "vanishing camp" where these guys would simply disappear -- making them, in effect, political prisoners.

That puts us on a footing with guys like China, Cuba, and every other petty dictatorship.

If he were a Republican, the MSM would be running comparisons to Pinochet.

(2) Don't believe for a minute that these changes (if they happen) will apply only to terrorists. All of these laws quickly become tools for prosecutors to use in regular cases. It would not be long before you start hearing about others being held under these same rules.

We should all be very scared of this.

Unknown said...

As usual, Obama (the great constitutional scholar) speaks without any understanding of what the Constitution says, and what two hundred years of cases have determined. First, during the elections, he told everyone that holding the prisoners at Guantanamo indefinitely without trial was unconstitutional. Wrong. Now, he's decided it's constitutional, but sympathizes with those who were non-combatants. Wrong again, but from a problem of his own ignorant making.

The much over-cited but poorly-understood Geneva Conventions are only partially self-actuating. As Andrew pointed out, so long as we maintained the very helpful position that they were all enemy combatants, we could keep them there during the entire course of an already poorly defined war. Essentially forever, or until at some point we decide the war is "over." The non self-actuating portions of the Conventions leave the determination of the status of the detainees to the law and tradition of the state which holds them.

But once Obama decided to distinguish enemy combatants from innocent victims inconveniently caught on a battlefield, he created two classes of detainees under both the Constitution and the Conventions. One can clearly be held indefinitely. But the "inconvenient innocents" must be afforded rights not available to genuine prisoners of war.

Here's where the "non self-actuating" portions of the Conventions come into play. Those matters not self-actuating are subject to law, precedent, and constitutional case law. The prisoners are not automatically entitled to the rights of an American citizen. That is only one of two options. The second is simply to return them to the nation which encompasses the battlefield on which they were captured.

By creating this "second class" of detainees Obama has put himself in a trap. Either he must treat them in traditional legal ways, with rights available to the American citizen. This option is highly unpopular. Alternatively, he could simply return those detainees to their native lands where they were captured. That would enrage the President's peace, love and brotherhood left wing. That only leaves him with a third, clearly unconstitutional option--to keep prisoners who are not enemy combatants interned indefinitely without providing them with any of the rights guaranteed by the Constitution and the Geneva Conventions.

There is no question that all but a tiny, tiny minority of these detainees are terrorists. But the Constitution and the Conventions do not allow indefinite detention for "terrorists" (remember, as one lefty said, one man's terrorist is another man's freedom-fighter). Indefinite detention is for prisoners of war--enemy combatants--only. Obama, relying on political convenience, has decided that most of the indefinite detainees must remain, regardless of which of his two self-created classes they belong to.

The Constitution is frequently impolitic and inconvenient. Professor Obama apparently neither learned nor taught that at Harvard. As Andrew pointed out, Obama has no problem with creating a whole new class of "political prisoner" which has no rights. As Obama himself loves to say, "Americans don't do that." If political prisoners can be foreigners, they can be American citizens as well. Be afraid. Be very afraid.

Unknown said...

Small correction to my earlier comment. Obama "learned" constitutional law at Harvard. He was so brilliant (as evidenced by his nonexistent scholarly legal treatises) that he "taught" constitutional law at the University of Chicago Law School.

StlDan said...

Obama and Company are learning it is harder to Govern than campaign. I look for the teleprompter to plug in the words "stay the course."

Mike Kriskey said...

I'm trying to understand this, so correct me if I'm wrong.

President Bush's Guantanamo policies were based on his administration's interpretation of federal law, the Geneva conventions, and the Constitution.

Obama campaigns heavily against these policies, decrying them as unjust and an embarrassment. Once elected, President Obama decides he likes their effect, though.

So he replaces his predecessor's legal argument with an arbitrary Executive Order which does not seem to have any legal arguments in its favor.

Is that right?

AndrewPrice said...

That about sums it up Mike. Bush's interpretation was strained and arguably wrong -- indeed, the Supreme Court told him that.

But Obama is now looking to do what Bush was trying to do, only more so, and in an even more arbitrary and illegal manner.

I guess that's how he plans to restore our standing in the world as supporters of the rule of law. . . by violating it.

Mike Kriskey said...

This reminds me of something I read over a month ago:

"The Obama Administration repudiates [Bush's] reasoning. Indeed, it denies that a war is in progress. What, then, is its justification for imprisoning anyone who has not at least been duly charged with violation of a criminal statute, and for denying those who have been charged the right to a speedy trial before a civilian court? Is it nothing more than Salus populi esto suprema lex? If so, President Obama is assuming powers that no previous President – and most especially not the last one – has ever asserted: a general authority to protect the public safety by any means that seem to him necessary.

If the President possesses extraordinary powers as commander-in-chief in wartime (as I concede he does), it is vital that their basis, and the context in which they can be exercised, be limited. Otherwise, a President really is indistinguishable from a dictator. When Calvin Coolidge was in office, lawlessness was rampant. Should he have rounded up New York and Chicago mobsters, thrown them into Alcatraz for indefinite terms, tried Al Capone before a military commission, and otherwise quelled the mafiosi “by any means necessary”? Barack Obama, on his own rationale, can’t explain why not."

Remarkably prescient!

AndrewPrice said...

Mike, that's exactly what is going on here. Obama is suggesting that he has the power to take people out of the system -- to make them un-people, and do with them as he thinks is needed, in the name of protecting us. Welcome to Cuba writ large.

Unknown said...

Although I had some problem with the Supreme Court allowing limited habeas corpus for detainees, it's an accomplished fact. They get a shot at questioning the reason behind their internment. Exactly what Obama demanded, pre-election. Now that he's the supreme arbiter of everything, he defeats the very purpose of that court decision. Once a writ has been granted, and it turns this is a mere terrorist, but not a combatant, Obama no longer has any constitutional right to hold them without trial or return to their home countries. If he pulls this off, we're next. "Too dangerous to be in the general population" describes every American conservative in the thinking of the leftist Obama administration. At least we'll get three hots and a cot.

BevfromNYC said...

Add to the other comments, the April report published from DHS "Rightwing Extremism:
Current Economic and Political
Climate Fueling Resurgence in
Radicalization and Recruitment" and it just seems to get more ominous.

Writer X said...

Obama continues to channel President Bush. Suddenly it's okay. You'd think the vast-left wing would be going ballistic. Barely a peep.

AndrewPrice said...

Bev, you've put your finger on the problem. Once power is given to the government, all of the promises of restraint disappear. And soon that power that was only meant to be used in exceptional circumstances get used in more and more everyday ways.

Writer X, the problem with the left is that they no longer have a consistent political view point. They believe that intentions are all that matter. And since we know that Obama has good intentions, and Bushitler had evil intentions, what Obama does is per se good.

It's like hate crime. Why is it worse for me to yell "I hate you" as I stabbed you, than it is for me to yell "I kind of like you" as I stabbed you? Liberals think it is, because they think the intentions are what matter.

I, personally, think it's the act that matters. . . but I'm crazy like that.

Writer X said...

Andrew. Great analogy! I'll try that on my liberal friend.

AndrewPrice said...

Writer X, I think you will be surprised at how many liberals will tell you that the "hate crime" was worse than the other.

They will couch it in terms of "but hate motivated the crime", but that's just circular reasoning. Both crimes were motivated. Being motivated by hate does not change the crime any more than if it was motivated by greed or even boredom.

What they are getting at is that they want to punish bad intentions and reward good intentions -- no matter what the results. That's what their world view has come down to in the past 10-20 years.

BevfromNYC said...

The other issue that we have not discussed is the mirandizing of certain enemy combatants in the field. I read an article last week that the FBI has been doing this on limited basis and arresting them under US law in Afghanistan. I will post a link. How they have any kind of jurisdiction in Afghanistan during a war is puzzling to me. Can't this open up our soldiers to the possibility of criminal arrest as well?

Mike Kriskey said...

If they are Mirandizing captured enemy combatants, doesn't that mean that those prisoners must be allowed an attorney during questioning?

AndrewPrice said...

Bev, I hadn't heard that. The only way that makes sense to me is if the FBI is looking for specific people, separate and apart from military action. In other words, they are running around the country picking up suspects. I can't imagine that they are trying to make soldier Mirandize captured enemies. That would be ludicrous.

Mike, If they are enemy combatants, whether or not the Obama people demand a Miranda reading or not is irrelevant. The Supreme Court will never rule that a POW has to be released because he wasn't read some rights, nor would they rule that a POW is suddenly not a POW because some fool read him his rights.

It sounds like this is the FBI grabbing individual suspects, as they might in Germany or France. If that's the case, they do need to be read their Miranda rights if they are going to be tried in US courts.

BevfromNYC said...

Here is a link of of Michigan Rep. Mike Rogers re: mirandizing -

Mike Kriskey said...

Here is a May 28 article in the LA Times.

It looks like it's not referring to enemy combatants. Obama is replacing the Bush model of anti-terrorism with a law enforcement model. CIA out, FBI in.

AndrewPrice said...


I don't know what to make of Rep. Rogers' comments. He seems to be mixing several things together that don't make any sense to me.

If I understand this correctly, they have simply decided to start using law enforcement to handle these matters after these guys have been picked up and are already being detained. Rogers' comments about soldiers needing to read Miranda strikes me as confused, and his analysis of Miranda's effects are flawed.

For example, he states that this will prevent our military from questioning these guys and will require us to provide them with attorneys to witness any interrogation. None of that's true.

Here's the thing about Miranda:

1. To the extent that these guys are enemy combatants, Miranda doesn't matter -- whether they read it not. Enemy combatants' rights are determined by the Geneva Conventions.

2. To the extent they are not enemy combatants, they need to be given the same rights as US citizens -- if they are to be tried in the US.

That would include reading Miranda rights.

HOWEVER, Miranda is not what people think it is.

Miranda is only a rule about the admissibility of evidence.

IF Miranda does apply, the worst that can happen would be that any confession given prior to the reading of the rights and any evidence obtained as a result of that confession, would be unavailable to the government in a prosecution.

Nothing about Miranda prevents US troops from interrogating them or using the information for whatever military purpose they need.

Moreover, even if these guys are never read their Miranda rights, they still won't be released. They can still be held and tried on whatever other evidence the government has available.

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