MORE on potential Indefinite Executive Detention

MUST READ: Harper's Magazine July 2009 here

Luke Mitchell: We Still Torture


This is out now on the check - stands and well worth reading OFF LINE...if you can't find it in the news stand or in a bookstore - maybe you could print it out from internet?
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From consortiumnews dot com

Obama's Torture Hypocrisy

By Jason Leopold
June 29, 2009

President Barack Obama just announced that the U.S. government is determined to prosecute officials who are responsible for torturing prisoners. But there’s a catch. Obama’s pledge only applies to torturers working for other governments.

To mark the 25th anniversary of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Obama quietly released a statement on Friday that called on the international community “to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment.”

Obama singled out the governments of Burma, Cuba, North Korea, Iran and Zimbabwe for human rights violations and engaging in “elaborate deceptions” aimed at concealing “their abuses from the eyes of the world... and denying access to international human rights monitors.”

Obama also cited Iraq under the previous government of Saddam Hussein, saying that “with Iraq’s liberation, the world is only now learning the enormity of the dictator’s three decades of victimization of the Iraqi people” and “a vast array of sadistic acts perpetrated against the innocent.”

While denouncing alleged torture by states that Washington dislikes, Obama was silent on the controversy over the Bush administration’s use of waterboarding and other torture tactics on detainees held by U.S. authorities during the “war on terror.” Some also were held as “ghost prisoners” at “black sites” out of the reach of the international human rights monitors.

Nor did Obama mention how U.S. forces abused Iraqi prisoners at Abu Ghraib, the same prison used by Saddam Hussein. Nor was there any reference to prisoners whom the United States “renditioned”...Read More HERE



ORIGINAL LINK here

Story Updated. Obama Considering Indefinite Detention Executive Order
Hotlist by mcjoan

Sat Jun 27, 2009 at 03:00:10 PM PDT

Barack Obama, May 21, 2009: "I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees – not to avoid one. 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."

Last night, the Washington Post and Propublica published a joint article reporting that the Obama administration was considering an executive order that would "reassert presidential authority to incarcerate suspected terrorists indefinitely," according to three anonymous administration sources.

Such an order would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the U.S. military prison at Guantanamo Bay, Cuba, White House officials are growing increasingly worried that reaching quick agreement with Congress on a new detention system may prove impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January 2010 deadline.

White House spokesman Ben LaBolt did not directly respond to questions about an executive order but said the administration would address the cases of Guantanamo detainees in a manner "consistent with the national security interests of the United States and the interests of justice."

One administration official suggested the White House was already trying to build support for an executive order.

"Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said. Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.


FIND HERE TWO APPROPOS ARTICLES on this issue (with many comments on Daily Kos)

Civil liberties groups, including the Center for Constitutional Rights immediately responded, leaving it clear that they were not at all supportive of prolonged detention. SEE: CCR's Shane Kadida

Prolonged imprisonment without trial is exactly the Guantanamo system that the President promised to shut down. Whatever form it takes - from Congress or the President's pen - it is anathema to the basic principles of American law and the courts will find it unconstitutional.... Another thing that's odd about this is the idea that this detention authority would somehow be more transient if it were authorized through executive order (which can be reversed at the stroke of the president's pen) rather than a statute (which could sit on the books indefinitely). If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent.

Another anonymous administration official gave a denial of the story to Marc Ambinder, but other outlets including the New York Times and the AP appear to have separate confirmation. The denial itself, repeated in an AFP story, says only that the draft order does not exist, not that the administration is not considering the move.

This seems pretty clearly to be a trial balloon by the administration, using a Friday news dump to determine how much backlash there would be against this extremely controversial order. It's a balloon that needs to be popped. A President saying that he has the unilateral power to hold anyone indefinitely outside of a theater of war is unacceptable after the past eight years of untrammeled executive authority. That a Democratic president would do so, after running and winning on a platform of transparency and the rule of law, is absolutely unacceptable. Not to mention unconstitutional, as the Supreme Court has ruled repeatedly in the last decade against the Bush administration.

President Obama also said, in his inaugural address: "As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake."

Which is precisely what this executive order would be: "White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible." It would be unilateral executive action for expedience's sake.

Look at the example Marcy supplies: the evidence being used to hold Walid bin Attash, accused of involvement in the 2000 USS Cole bombing, comes from testimony from Abd al-Rahim al-Nashiri, and is probably inadmissable because it was gained through torture. As Marcy says, "Will Walid bin Attash be deprived a day in Court because we're covering up our own torture?"

This isn't how to solve the thorny problem of the detainees in this ongoing war. It's also not how to "move forward" from the legacy of torture and lawlessness of the past administration. Let's pop this trial balloon, and fast.

View Comments on Daily Kos - Find perhaps over 400 comments by now? And/or place a comment on this blogsite, perhaps?

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A short note on indefinite detention Hotlist by David Waldman

Sat Jun 27, 2009 at 05:30:08 PM PDT

As mcjoan noted earlier, someone, somewhere is floating the idea of an executive order to implement a system of "prolonged detention" for the Obama administration. Joan certainly covered all the bases in her approach to the story, but I do have my own angle to add.

I was particularly struck by one passage in the Washington Post/Pro Publica article:

One administration official suggested the White House was already trying to build support for an executive order.

"Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said. Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.

It's not stated explicitly, but since the story goes on to cite the President's speech of May 21st just three sentences later, I don't think it's out of the question to guess that the unnamed administration official above had in mind the President's meeting of May 20th with civil liberties activists and legal scholars when he or she said that the administration was encouraged to adopt any such system through an executive order.

The only problem with that is, I don't recall anyone encouraging any such thing.

My memory of that meeting, of course, is by no means the definitive record. But given the specific focus of my own participation in that meeting, it seems rather unlikely that I would have missed anyone's suggestion that such a policy be implemented by unilateral action of the President. In fact, my comments at the meeting began with the specific warning that any new policies put in place by this administration would undoubtedly survive it, only to be abused by some succeeding administration, no matter what President Obama's intentions in implementing them. So while I see the point in arguing that an executive order can be more easily rescinded, it also seems obvious that it can be reissued just as easily. Or more likely, that a new and more draconian one can be issued in its place, with President Obama's serving as precedent. I doubt that would have escaped notice or comment.

And indeed, as mcjoan noted (via TPM), Shane Kadidal of the Center for Constitutional Rights did comment:

Another thing that's odd about this is the idea that this detention authority would somehow be more transient if it were authorized through executive order (which can be reversed at the stroke of the president's pen) rather than a statute (which could sit on the books indefinitely). If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent.

Indeed, that was another part of my focus: that tendency for unchecked executive power to congeal into precedent, for which I relied as I frequently do on Justice Frankfurter's opinion in the Youngstown steel seizure case.

Lo and behold, it is also the focus of today's "told you so" from the right:

The world sure looks different after you take that oath of office, doesn't it? How easily campaign declarations of outrage are forgotten! I bet there's not a president since Truman who hasn't learned to loathe the Supreme Court's decision in the Steel Seizure Case.

So is it just a trial balloon? I don't know. But someone certainly went out of their way to try to manufacture a justification that can lean on the supposed advice (albeit reluctant) of civil liberties groups. And the denial has its own problems:

"There is no executive order. There just isn't one."

That is, it depends on what the meaning of the word "is" is. There is no executive order. But that wasn't the story. The story was that there was a draft. Which, of course isn't an executive order. It just isn't one.

But whether there's a draft or not, I think it's worth pointing out that I'm not so sure there was any civil liberties group that encouraged the President to act by executive order, either.