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25 December 2010 By Bill
Quigley 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. By Bill Quigley and Vince
Warren. 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 |
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