Obama's Radical Gitmo Plan

President Barack Obama's controversial detention plan for Guantanamo detainees keeps leaking.

First, anonymous administration officials said the president might authorize "preventive detention" for detainees through an executive order, shutting Congress out of the process. The White House pushed back, stating there is no such order right now. (That kind of nondenial, however, depends on what the meaning of the word "is" is.) Then Robert Gibbs added that the president would not rely on legal theories claiming an "inherent authority to detain people."

Yet either way, the president already announced his support for preventive detention in his speech at the National Archives.

It is a fundamentally radical, dangerous and potentially unconstitutional approach. Obama has faced little blowback thus far, however -- a revealing sign about the state of the Democratic-progressive infrastructure.

First, to begin plainly: Preventive detention is a system to imprison people without trial or independent oversight. It has scant precedent in American history.

It is equivalent to permanent detention, in that it operates indefinitely, without judicial limits, and can effectively institute life sentences. Implemented on a mass scale, in fact, preventive detention can look like internment. When a government forcibly holds enough people indefinitely without trial, it evokes the kinds of raids, detention and abuses of power associated with authoritarian states -- or darker periods in American history.

The administration's preventive detention plan "violates basic American values and is likely unconstitutional," Sen. Russ Feingold warned in a recent letter to Obama, cautioning that detention without trial "is a hallmark of abusive systems that we have historically criticized around the world." And if preventive detention is ultimately enacted, there is no way to predict whether this president -- or a future one -- would try to invoke a preventive detention law to hold U.S. citizens without trial.

Even George W. Bush, who as president pushed the boundaries of executive power, never proposed a statutory scheme to hold people indefinitely. If Bush had proposed the same preventive detention scheme, there probably would have been far more public outrage. Yet the point is actually much broader than partisan double standards.

The reception to Obama's radical proposal shows both the enduring trauma of Sept. 11 as grounds to undermine American principles -- regardless of which party is in power -- and the cohesive state of the Democratic-progressive infrastructure.

Obama does not stoke fear of another attack, to his credit, but he still invokes terrorism as a reason to ditch the military justice system that has long served the nation. The response to Sept. 11 was so special, in fact, that some preventive detention backers claim the system would be strictly limited to resolving cases from Guantanamo.

The pledge admittedly has a certain appeal: a one-time exception to put Gitmo firmly behind us. But that is not, of course, how law works. A precedent provides legal authority for an action precisely because it occurred before. And presidents tend to use new powers gingerly, rather than unilaterally abandoning them after one test drive.

Then, there is the missing backlash. The (potential) battle over preventive detention -- just like progressive disputes over torture, the public insurance option and economic reform -- tests whether the Democratic-progressive infrastructure that has been steadily built over the past eight years will function as an accountability movement or an echo chamber for a powerful presidency.

To be clear, a few legal groups such as the American Civil Liberties Union, the Constitution Project and the Center for Constitutional Rights, where I once worked, have strongly confronted Obama on detention policy. Some members of Congress, including Feingold and Rep. Jerrold Nadler, have also drawn a line in the sand. In the media, MSNBC anchor Rachel Maddow has been on the case, and several progressive bloggers have called out Obama for backtracking on his commitment to due process in closing Guantanamo.

Some of the largest liberal think tanks and advocacy groups have not organized against Obama's detention proposal, however, while many liberal voices in the traditional media have been silent. And the Democratic Congress restricted Guantanamo funding for political posturing, rather than prioritizing an actual sentencing regime for detainees.

Despite all that, Obama officials still worry that preventive detention is too hard to pass in Congress, hence fleeting debate over whether to advance it by executive order. Just imagine how the proposal would fare if everyone put up a fight.

--Ari Melber writes a column for Politico, where this was first published.

 

 

Follow Ari Melber on Twitter: www.twitter.com/AriMelber

Comments

[Dimitra Ekmektsis]

Indictment of US officials for the continued crime of torture under the Obama administration depends on a movement of mass resistance by the people! Torture is a war crime and a crime against humanity. The laws adopted by the U.S. after WW II and in International Human Rights Treaties to which the U.S. continues to be party emphasize that there are NO exceptions! No legal justification or evidence that validates the use of torture.

Will the future members of the legal profession rubberstamp torture with silence when the need to speak out will make all the difference in the world? The time to take action is now. The responsibility to oppose the continuation of these crimes is imperative. A legal profession which tolerates torture and knows of such crimes happening IN ITS NAME yet refuses to fire, disbar and prosecute this crime, enables and insists on its future continuance and justification for even MORE widespread mechanisms of degradation, brutality, and inhumanity.

If you care about humanity and know this is wrong, then you must demand and act on that demand that the conduct stop, that those in the Bush regime who authorised, justified, and administeredit be thoroughly investigated, prosecuted, and held accountable for these crimes.

Please, go to http://www.warcriminalswatch.org and http://www.sfbaycantwait.org.

[Dimitra Ekmektsis]

Under Bush, John Yoo wrote the legal justification for state sanctioned torture! Fire, disbar & prosecute John Yoo. Quote: "IN THE EXCERCISE OF HIS PLANETARY POWER TO USE MILITARY FORCE, THE DECISIONS ARE FOR HIM ALONE AND ARE UN-REVIEWABLE" unquote.

(http://www.firejohnyoo.org)

[joecoolconservative]

Zakir apparently "felt it would be fine to wage jihad against Americans, Jews, or Israelis if they were invading his country."

And he acknowledged that he was "called to fight jihad in approximately 1997," when he joined the Taliban.

In 2001, he surrendered to US and Afghan forces in the northern city of Mazar-e-Sharif as the regime was collapsing. He spent the next several years in custody, was transferred to Guantanamo around 2006, then to Afghanistan government custody in late 2007, and was eventually released around May 2008. American officials won't say why he was let go and have not released a photograph of him.

Zakir wasted little time rekindling his relationship with the Taliban, especially its inner shura, or leadership council, based in Pakistan. According to some accounts, Taliban leader Mullah Mohammed Omar appointed Zakir as a senior military commander in mid-2008. He quickly developed a reputation as a charismatic leader.

source - http://www.nypost.com/seven/07052009/news/worldnews/mullah_sprung_from_gitmo_jail_now_leads__177719.htm

[pomegrante]

the presidency(both dem and repub) is like the wizard . check who's behind the curtain

[LewDan]

There is NOTHING "radical" about the plan. You are misleadingly and arbitrarily mixing law enforcement and national defense.

Enemy combatants have ALWAYS been held indefinitely as prisoners of war until the end of hostilities, and unless accused of some egregious war crime POWs are never tried in a court of law. In fact, other than specific "war crimes" murdering people in "acts of ar" is not "illegal."

Law Enforcement is about enforcing U.S. law; identifying, apprehending and punishing law-breakers.

National Security is about PREVENTING attacks against U.S. citizens and interests and combatting hostile forces, not "enforcing" U.S. law.

The problem with the Bush/Cheney detention of terrorists as enemy combatants was not that they were detained indefinitely but that they were often niether terrorists nor enemy combatants. When you capture the opposition on the battlefield there's no need for tribunmals to determine they are enemy combatants. When you kidnap them off the street or buy them from a bounty-hunting "ally" its a different story.

[wbgonne]

Amen. This nonsense is hardly worth responding to any further. We have much bigger fish to fry: the economy; universal health care; global warming; Iraq, Afghanistan, Iran, Pakistan, Israel, etc., etc. etc. Those who are committed to the Obama = Bush-lite meme have an unquenchable thirst for raising the rabble. What a waste of time.

[TheIndependenceParty]

If the drivel you write was founded on legal principles, ... Obama need do nothing! In point of fact it is neiher legal, nor constitutional, ... IMHO, and were we not a superpower, it would be the subject of UN Sanctions, I feel certain. The Hague would be trying its founders from the last nine years of neo-fascist rule over America, ... except that we do not subscribe to that court. It is clear now why we do not!

What Obama has done is to claim the rotted stinking mantle of Bush Regime policy, ... and cloaked himself and his party in it as well. By issuing an Executive Order to sanction its continuation, he will simply infect our Nation for all time with the identity as a nation that formalizes the abuse of human rights, and ignores its own laws.

[PJay1]

Bravo!
Very astute and informed.

[valkyrie607]

The backlash is right fracking here!

But I'm not a media conglomerate. We need new media. The fiasco with Alicia Shepard is a case study in how degraded and pathetic our national media have become. This dysfunction was perfectly captured by Jon Stewart and Rob Corddry:

Stewart: Here's what puzzles me most, Rob. John Kerry's record in Vietnam is pretty much right there in the official records of the U.S. military, and hasn't been disputed for 35 years.

Corddry: That's right, Jon, and that's certainly the spin you'll be hearing coming from the Kerry campaign over the next few days.

Stewart: That's not a spin thing, that's a fact. That's established.

Corddry: Exactly, Jon, and that established, incontrovertible fact is one side of the story.

Stewart: But isn't that the end of the story? I mean, you've seen the records, haven't you? What's your opinion?

Corddry: I'm sorry, "my opinion"? I don't have opinions. I'm a reporter, Jon, and my job is to spend half the time repeating what one side says, and half the time repeating the other. Little thing called "objectivity" --Might want to look it up some day.

Stewart: Doesn't objectivity mean objectively weighing the evidence, and calling out what's credible and what isn't?

Corddry: Whoa-ho! Sounds like someone wants the media to act as a filter! Listen, buddy: Not my job to stand between the people talking to me and the people listening to me.

[PJay1]

Speaking of the silence, so to speak, I have to say that I'm a bit disappointed with both Kieth and Rachel.
I've heard nothing from them about this.
Instead, it's all Sara Palin and extra marital affairs by Republicans.
Who cares about their affairs or about Sara Palin??!!? I know I don't.
They're irrelevant, yet by talking about them constantly, even negatively, they're given more importance than they deserve, imo.

Enough already!

[bingvangorden]

http://www.youtube.com/watch?v=bB8WZyiX5Po

[PJay1]

Thank you.

Yes, I know she's been better than most overall and deserves credit for going where many won't.

It's just that at least tonight, as well as last night, it was shallow stuff (Republican scandals and Sara Palin) and I found myself changing the channel, thinking what a waste of prime time.

I would really like to see more CONSISTENT coverage of important things like this subject of possible indefinite detention, the escalation of war in Afghanistan with subsequent "collateral damage". (I hate that term - it's so dehumaniizing of precious lives.).
More about prosecutions or lack thereof for war crimes, about intrusions into our lives and violations of civil liberties, the bank takeovers, health care, you know, things that matter and NOT this trash stuff about an irrelevant party.

Kieth and Rachel have two hours of prime time, they have the audience, yet they seem to devote more time to shallow stuff than to the things that can make a real difference in our lives. It kind of feels like a waste of precious time and resource and an insult to our intelligence.

Maybe that's the idea - to keep the viewers dumbed down. They do after all work for the corporate owned, agenda driven *MSM*. Sadly, their agenda is not the people's agenda.

[wduane]

The so-called legal problems with closing Gitmo are really the problems the Washington establisment always has with letting any power go that they have acquired. It's a creepy tendency of Washington to grow the security/control state while allowing other critical elements (like healthcare) go to ruin, or allow them to be privatized into disaster. Gitmo should simply be closed and the inmates cycled into the regular justice system, or freed (as many were invented terrorists to begin with).

[Dusty Campbell]

Then theres that guy Bush let out of gitmo, and now he's on the front lines in Affganistan leading the fight agianst us. Surely we can't let the rest of them go free now. Tuff call for Obama.

[TheBaffler]

What "guy?" Cite some sources, please.

[PJay1]

That's a stale and debunked talking point.

[valkyrie607]

Back it up or shut up.

[PJay1]

Very unsettling that they're even contemplating this.
And yes, the silence is deafening!

Thank you for this, Ari as well as the others who try to bring this to the fore.

No wonder O and his justice dept wants to be 'forward looking' - they're allowing the crimes to continue.
This is complicity at best, making them equally guilty.

[Curdleberg]

Good article, Ari...time to hold this President to a higher standard, progressives.

[RodgerLodger]

Yeah, progressives really have a lot of influence over Obama. LOL!

[naschkatze]

It's time for progressives to take a stand against Obama. I give my money to the ACLU and Amnesty International to fight Obama in the courts.

[Coinyer101]

I agree. when it all comes out , he may be found to be complicite or obstructionist,as well. Too bad our DOJ and AG are bought and paid for.

[bilmardre]

Preventive detention only applies to the baddest of the bad, those that will proudly admit to wanting to kill Americans if given the chance. Now some like Ari and Russ might think a few American lives is a small price to pay to uphold our values, as long as those paying are not in their family. Obama is in a difficult situation as he must balance upholding our values while being mindful of his most sacred duty which is attempting to keep all Americans safe.

[taikan]

There is nothing in the Presidential oath of office about "keeping Americans safe." There is, however, a promise to "preserve, protect and defend the Constitution."

[LewDan]

"Nothing in the Presidential oath of office about "keeping Americans safe?" Just what do you think the Constitution's order that the President be the Commander in Chief means?

And I might add, just what do you think the Constitution is for? A promise to "preserve, protect and defend the Constitution" is also a promise to fulfill its requirements.

[valkyrie607]

"Oh say does that star-spangled banner yet wa-ave...

In the land of the SAFE

and the home of the SAAAAFE"

[CypressTree]

Dear President Obama,
Remember that really important word you were looking for in a Supreme Court Justice? The word was "Empathy." Well check it out-I looked it up on dictionary.com and here is the definition:
"the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes
of another."
Cool definition huh? Well anyways, I was wondering if you had ever thought of trying it out for yourself? My guess is no for a couple of reasons:
1) Have you thought about how it would feel to be acquitted of charges yet still retained in jail because someone who doesn't even know you thinks you could be dangerous?
2) Have you thought about how it would feel to have your family bombed by a drone missile even though they had not been involved in any militaristic activities against the US?
3) Have you thought about how it would feel to have been removed from your partner's deathbed or removed from the military because you were gay?
4) Have you thought about how it would feel to die or our go bankrupt because of unavailable healthcare?
5) Finally, have you ever thought about how it would feel for an American to endure 8 years of lawlessness and treachery from a President, then promised "Change" and the resumption of our liberty, humanity, and pride only to be lied to and stabbed in the back
You are a hypocrite and shame us and yourself daily with your actions.

[viper234]

Excellent questions? The frightening thing is that Americans don't give a damn. Americans now seem content to go along with anything the government does until of course all of it comes back to bite Americans in the collective ass. Then you'll hear sounds such as, "I thought the President was only going to detain bad people who want to hurt Americans. I had no idea that preventive detention would be used to detain American protesters, journalists, my pastor, politial groups, etc. The Executive Branch has gone without checks and balances for far too long. Bush was the limit, but Obama is not giving up any of the power left behind by the previous administrataion. He is simply consolidating that power. And the longer those checks and balances are missing the more powerful and authoritarian the government will become.

[PJay1]

Excellent letter! If you haven't already, please send it to him and a copy to each and every senator and congress person. Post it far and wide and often.
Thank you.

[Truthahn]

Where is the liberal outrage? Obama is going well beyond Bush's claims of executive power regarding secrecy, spying, and detention, yet the progressive responsive is a big "meh." Here at Huffpo any silly story on Sarah Palin gets hundreds or even thousands of comments. Obama thumbing his nose at the Constitution gets only a fraction of the comments that even the stupidest Palin story gets.

[RodgerLodger]

Palin is clearly more important than obama.

[bingvangorden]

The liberal outrage is right here, but to imply that Obama has been much worse than Bush is a joke. He's adopted some of Bush's policies and that is the extent of it, he has not expanded on anything Bush did. Where was the conservative outrage then? Blindly following the President and watching FoxNews that's where.

[valkyrie607]

In a way, Obama is worse: Bush was always forthright about the fact that he believed that the president has extraordinary powers; Obama pretends to believe in the rule of law but in reality, he wants show trials whose outcome is assured.

[RumiSouth]

If it requires a presidential order to keep them, then it will be a good thing we elected a Constitutional law professor.