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Law Professors Outraged by Senate Vote on Indefinite Detention

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There were other senators, like Mike Lee, Republican of Utah, said citizen terrorism suspects should retain their "fundamental civil liberties" in order to protect the founding principles of the United States. "I think at a bare minimum, that means we will not allow U.S. military personnel to arrest and indefinitely detain U.S. citizens, regardless of what label we happen to apply to them," he said. But they were shamefully outnumbered and the bill passed 93-7.

Against this background, the Public Record asked a group of distinguished law professors, "Do our government officials have the power to arrest people inside the United States and hold them in military custody indefinitely and without a trial?"

Here are parts of their answers:
Lt. Col (Res.) David Frakt, professor at Barry Law College, Frakt defended Guantanamo detainee, Mohammad Jawad, an alleged combatant facing charges for events that took place when he was a minor. Jawad is one of two detainees, along with Omar Khadr, to be prosecuted at Guantanamo for acts they allegedly committed while juveniles.
"My opinion is this:  There is no Constitutional authority to detain a U.S. citizen inside the United States and place him or her in military detention at all, regardless of the nature of the crime of which the individual is suspected, with the possible exception of a U.S. citizen who has actually joined a foreign military with which we are at war, as in the case of Ex Parte Quirin during World War II.

"As for non U.S. citizens.  Terrorists, regardless of nationality are simply criminals.  If they are arrested committing or attempting to commit a crime domestically, they should be treated as ordinary criminals.  If they are attempting to engage in armed conflict with U.S. armed forces overseas, then they can be detained under the law of armed conflict. 

"There is no meaningful distinction between a foreign terrorist like the persons who tried to blow up the World Trade Center or Omar Farouk Abdulmutallab and a domestic terrorist like Timothy McVeigh.  They all want to kill innocent American civilians by blowing things up.  While they all may well have useful information to provide law enforcement, the Constitution does not permit that information to be extracted involuntarily or through indefinite military detention. Much as politicians like Senator Graham would like to disregard the Constitution in pursuit of the impossibly elusive goal of perfect security, doing so not only diminishes us a country, but plays right into the hands of our enemies, who will only exploit our apparent hypocrisy for propaganda and recruiting purposes."

Kathy Manley, an Albany (NY) Criminal defense attorney and vice-president of the Capital Region Chapter of the New York Civil Liberties Union ( NYCLU).

"Do they have the power to do it? Apparently so, unless we can stop them. But it is clearly illegal, under the Due Process Clause and Treason Clauses of the Constitution (as well as others), the Posse Commitatus Act and a variety of other laws. The problem is that neither Congress, the President or even the courts seem to have the slightest inclination to uphold the rule of law. That task is therefore falling to the people, who, other than a handful of civil libertarians, had been woefully deficient in doing anything about it.
We have to stop this before all our rights are gone."

Francis Anthony Boyle, professor of international law at the Illinois State University College of Law:

"Of course not! Every person here in the United States-citizens and aliens alike-is entitled to all of the protections set forth in the Fourth, Fifth and Sixth Amendments to the U.S. Constitution, inter alia. They are also entitled to all of the protections set forth in the International Covenant on Civil and Political Rights, a treaty to which the United States is a contracting party and thus "the Supreme Law of the Land" under Article VI of the U.S. Constitution.

"What the American People are witnessing now with this new proposed legislation is the further development of an American Police State into a Military Dictatorship, a process  that was started by the so-called USA Patriot Act in 2001. President Obama must veto it or else America will lose all pretense of having our Military subjected to the control of democratically elected civilian  leaders as originally envisioned and required by the Constitution.

Peter Shane, professor of law at Ohio State and currently visiting professor of law at the Harvard law school:

"I can do no better than quote the dissent of Justice Scalia - Justice SCALIA - in Hamdi v. Rumsfeld, 542 U.S. 507 (2004):  'The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.'  

"Again, quoting Scalia:  'Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.  Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, -9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge'."

If the Senate version emerges from the House-Senate reconciliation committee looking like the Senate version - and Obama signs it - we will be fully in the thrall of the George W. Bush-Dick Cheney-John Ashcroft-Donald Rumsfeld mafia.

The Senate will have done what the Senate seems to do best these days: Kick the can down the road.

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)

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and I'm appalled that neither of those prestigous ... by GLloyd Rowsey on Thursday, Dec 8, 2011 at 8:01:23 PM