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The evil of indefinite detention and those wanting to de-prioritize it

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reprinted from Salon.com

This Wednesday will mark the ten-year anniversary of the opening of the Guantanamo prison camp. In The New York Times, one of the camp's former prisoners, Lakhdar Boumediene, has an incredibly powerful Op-Ed recounting the gross injustice of his due-process-free detention, which lasted seven years. It was clear from the start that the accusations against this Bosnian citizen -- who at the time of the 9/11 attack was the Red Crescent Society's director of humanitarian aid for Bosnian children -- were false; indeed, a high court in Bosnia investigated and cleared him of American charges of Terrorism. But U.S. forces nonetheless abducted him, tied him up, shipped him to Guantanamo, and kept him there for seven years with no trial.


Lakhdar Boumediene (image from wikipedia)

In September, 2006, the U.S. Congress passed the Military Commissions Act (MCA) which, among other things, not only authorized the detention of accused Terrorist suspects without a trial, but even explicitly denied all Guantanamo detainees the right of habeas corpus: the Constitutionally mandated procedure to allow prisoners at least one opportunity to convince a court that they are being wrongfully held. Habeas hearings are a much lower form of protection than a full trial: the government need not convince a jury beyond a reasonable doubt that someone is guilty, but rather merely present some credible evidence to justify the imprisonment. But the MCA denied even habeas rights to detainees.

Only once the U.S. Supreme Court, in a 2008 decision bearing Boumediene's name, ruled that this habeas-denying provision of the MCA was unconstitutional, and that Guantanamo detainees were entitled to habeas corpus review, was the U.S. government finally required to show its evidence against Boumediene in an actual court. A Bush-43 appointed federal judge then ruled that there was no credible evidence to support the accusations against him, and he was finally released in May, 2009. Please first go read Boumediene's short though gripping account of what this indefinite detention did to his life, and then consider the following points:

(1) Since the Supreme Court's Boumediene decision, dozens of Guantanamo detainees like Boumediene were finally able to have a federal court review whether there was any credible evidence against them, and the vast majority have won their cases on the ground that there was no such evidence (at one point, 75% of Guantanamo detainees prevailed, though the percentage is now somewhat lower). Had the Military Commissions Act been upheld as constitutional, Boumediene -- and dozens of other innocent, now-released Guantanamo detainees -- would undoubtedly still be indefinitely imprisoned.

Put another way, if those who voted for the MCA had their way -- and that includes all GOP Senators except Lincoln Chafee along with 12 Democrats, including Jay Rockefeller, Debbie Stabenow, Robert Menendez, Frank Lautenberg, and current Interior Secretary Ken Salazar -- then Boumediene and dozens of other innocent detainees would still be wrongly imprisoned. Moreover, the Democrats had 46 Senators at the time and could have filibustered but did not; indeed, even many Democrats who voted against the bill anointed John McCain as their negotiator and were prepared to vote for the MCA until the very last weekend when some unrelated changes were made without their input and they were offended on that procedural ground. As Boumediene's Op-Ed reflects, acting to empower the President to imprison people indefinitely with no charges is one of the most pernicious and dangerous steps a government can take, and yet the U.S. Congress in 2006 did exactly that.

(2) The Boumediene  Supreme Court decision was a 5-4 vote; thus, four Justices of the U.S. Supreme Court voted to uphold the constitutionality of imprisoning human beings indefinitely, possibly for life, without even the minimal protections of a habeas hearing. Had Anthony Kennedy voted with his conservative colleagues, not only would Boumediene and dozens of others still be wrongly imprisoned, but the power which the U.S. has long taught its citizens is the defining hallmark of tyranny -- the power to imprison without due process -- would have been fully enshrined under American law.

(3) Post-Boumediene, indefinite detention remains a staple of Obama policy. The Obama DOJ has repeatedly argued that the Boumediene  ruling should not apply to Bagram, where -- the Obama administration insists -- it has the power to imprison people with no due process, not even a habeas hearing; the Obama DOJ has succeeded in having that power enshrined. Obama has proposed a law to vest him with powers of "prolonged detention" to allow Terrorist suspects to be imprisoned with no trials. His plan for closing Guantanamo entailed the mere re-location of its indefinite detention system to U.S. soil, where dozens of detainees, at least, would continue to be imprisoned with no trial. And, of course, the President just signed into law the NDAA which contains -- as the ACLU put it -- "a sweeping worldwide indefinite detention provision," meaning -- as Human Rights Watch put it -- that "President Obama will go down in history as the president who enshrined indefinite detention without trial in US law." Those held at Guantanamo will continue to receive at least a habeas hearing, but those held in other American War on Terror prisons will not. Read Boumediene's Op-Ed to see why this is so odious.

(4) As we head into Election Year, there is an increasingly common, bizarre and self-evidently repellent tactic being employed by some Democratic partisans against those of us who insist that issues like indefinite detention (along with ongoing killing of civilians in the Muslim world) merit high priority. The argument is that to place emphasis on such issues is to harm President Obama (because he's responsible for indefinite detention, substantial civilian deaths, and war-risking aggression) while helping competing candidates (such as Gary Johnson or Ron Paul) who vehemently oppose such policies. Thus, so goes this reasoning, to demand that issues like indefinite detention and civilian deaths be prioritized in assessing the presidential race is to subordinate the importance of other issues such as abortion, gay equality, and domestic civil rights enforcement on which Obama and the Democrats are better. Many of these commentators strongly imply, or now even outright state, that only white males are willing to argue for such a prioritization scheme because the de-prioritized issues do not affect them. See here (Megan Carpentier), here (Katha Pollitt) and here (Dylan Matthews) as three of many examples of this grotesque accusatory innuendo.

There are numerous glaring flaws with this divisive tactic. For one, it relies on a full-scale, deliberate distortion of the argument being made; demanding that issues like indefinite detention, civilian deaths and aggressive war be given high priority in the presidential race does not remotely advocate the de-prioritization of any other issues. For another, many women and ethnic and racial minorities -- as well as gay Americans -- are making similar arguments about the need for these issues to receive substantial attention in the election.

More important, it's irrational in the extreme...

read the rest of the article here

 

For the past 10 years, I was a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters. I am the author of the New York Times Best-Selling book, How Would A Patriot (more...)
 
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I thought Huntsman was supposed to be an alternati... by spinnikerca on Sunday, Jan 8, 2012 at 6:58:44 PM
Mr. Greenwald is mistaken. the NDAA language was c... by lila york on Monday, Jan 9, 2012 at 7:36:29 AM
What the hell?  How much money did it take? &... by Lester Shepherd on Monday, Jan 9, 2012 at 8:21:20 AM
I tried to find the part where Greenwald wrote tha... by Richard Pietrasz on Monday, Jan 9, 2012 at 4:37:46 PM
Obviously, while NDAA is in force, the prez MUST g... by Leslie Piper on Monday, Jan 9, 2012 at 3:00:36 PM