Friday, May 22, 2009


Sam Smith, Progressive Review - With his comments on preventive detention, President Obama has assumed the privileges of a dictator. There are no constitutional grounds for what he intends to do and nothing therefore to prevent him from expanding the language to include, for example, preventive detention for journalists who oppose the first three country conflict America has been in since World War II.

The claim by both Bush and Obama that they can exercise unconstitutional powers because we are in a war is supported neither by the document itself nor by reality, inasmuch as Congress has yet to declare war on anyone we are currently fighting. Further, all the unconstitutional measures used or proposed - from torture to preventive detention - have gained prominence without a single significant effort on the part of the United States to lessen the chances that someone in the countries concerned might wish to harm us. We have not only jettisoned the Constitution but common sense as well.

Andy Worthington, Counterpunch - Frankly, to even entertain the prospect that a third category of justice (beyond guilt and innocence) can be conjured out of thin air without fatally undermining the principles on which the United States was founded is to enter perilous territory indeed. Fundamentally, Guantánamo is a prison that was founded on the presumption that the Bush administration's "new paradigm" justified "preventive detention" for life, and although Obama stepped up his assurances at this point in his speech -- talking about "clear, defensible and lawful standards," "fair procedures," and "a thorough process of periodic review" -- it is simply unacceptable that "preventive detention" (which he referred to, euphemistically, as "prolonged detention") should be considered as an option, however much he tried to legitimize it by stating, "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."

Look at the sentence, "Hold[ing] individuals to keep them from carrying out an act of war," replace "an act of war" with "a crime, any crime," and you will, I hope, realize why the proposed policy is so terrifying and so thoroughly unacceptable. If a President came to power promising to "hold individuals to keep them from committing a crime, any crime," I'd be very worried indeed. . .

I'm almost speechless with despair about [the proposal], and would urge anyone who believes in the fundamental right of human beings, in countries that purport to wear the cloak of civilization with pride, to live as free men and women unless arrested, charged, tried and convicted of a crime, to resist the notion that a form of "preventive detention" is anything other than the most fundamental betrayal of our core values.

Andy Worthington is a British historian, and the author of 'The Guantanamo Files

Clip of Obama Speech: That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. . . We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. . . . our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. 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.

Rachel Maddow: You'll construct a legal regime to make indefinite detention legal. . . Develop an appropriate legal regime so you can construct a whole new system outside the courts even outside the military commissions so you can indefinitely imprison people without charges. And you will build that system from scratch. What's that somebody said about ad hoc legal strategies?

Just for context here in the United Kingdom where there isn't even a bill of rights, there has been a major debate about whether people can be held in preventive detention. Former Prime Minister Tony Blair wanted three months to be the outer limit for how long anyone could be held. There was a big political fight about it. Parliament ended up limiting that power to 28 days. 28 days is still the longest period of preventive detention that's allowed under law in any comparable democracy anywhere in the world

How long would President Obama's proposed indefinite detention last? He's not saying yet, but here is how he's defining the threat he says makes indefinite detention necessary.

Clip of Obama's speech: Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and -- in all probability -- 10 years from now.

Maddow: Ten years from now? So you could get arrested today and locked up without a trial without being convicted without being sentenced for say ten years until the threat of your future criminal behavior passes? Prolonged detention he's calling it.

This was a beautiful speech from President Obama today with patriotic even moving language about the rule of law and the constitution and one of the most radical proposals for defying the constitution we have ever heard made to the American people.


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