Misperceptions Regarding Obama's Guantanamo Executive Order

[dennis4868]

http://balkin.blogspot.com/2011/03/further-thoughts-on-guantanamo.html

Further Thoughts on the Guantanamo Executive Order


Deborah Pearlstein


Yesterday, I posted over at Opinio Juris some initial reactions to the Executive Order the President issued creating a new periodic review system for the detainees at Guantanamo Bay. After reading some of the other reactions circulating in the ether yesterday, I don’t think I’ve seen anything that leads me to change that account. But there are several apparent misperceptions out there I think warrant correction.

First is the notion – captured by the Washington Post’s lead article on the order – that the executive order somehow creates a new “formal system of indefinite detention” for the Guantanamo detainees. (Ditto Dafna Linzer, among others.) The order I think is about as clear as it could be that it is being issued pursuant to existing authorities, most notably the statutory Authorization for the Use of Military Force (AUMF), and is not intended to and should not be read to alter the scope of detention authority available under that statute as interpreted by the courts. Again, the key language from the order: “It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law. Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.” Why do I raise this? It’s not because I am a great proponent of the D.C. Circuit’s interpretation of the AUMF. On the contrary, that court basically ignored what guidance international law does offer and otherwise I think found a degree of detention authority under the AUMF broader than what one could plausibly (or wisely) attribute to statute. But the suggestion that yesterday’s order is supposed to broaden that already broad grant of congressional/judicial detention authority, or is somehow supposed to reset the litigation clock back to zero on what the scope of that detention authority should be – is simply not supported by the text of the order.

skip...

In 2008, efforts by Congress even to conduct hearings into detention-related matters were still met with the criticism by some that Congress was interfering in matters properly left to the executive branch. Since then, Congress has become engaged up to its eyeballs in micromanaging the executive’s handling of a handful of detainees, and is otherwise devoting its Guantanamo-related energy to preventing the President from bringing criminal charges in our own courts against men who the President and Congress believe have committed crimes.



THE REST IS HERE....http://balkin.blogspot.com/2011/03/further-thoughts-on-guantanamo.html

I AM NOT USRE WHERE ANYONE GOT THE IDEA THAT THE EXECUTIVE ORDER CREATED A SYSTEM OF INDEFINITE DETENTION OF THE GITMO DETAINEES but that has been the DU narrative today.....It's also been the narrative today at DU that it's Obama's fault that Congress has not funded the closing of Gitmo and that somehow Obama is really wealthy enough to pay the expenses of closing Gitmo from his own pocket....

[vaberella]

1. It's not the narrative "today" it's always the case alongside "Obama doesn't want to close Gitmo."

~sigh~

[dennis4868]

2. I stand corrected.....

IT'S ALWAYS THE CASE.....you are so right.....facts used to mean something at DU but not anymore....peoples hatred for Obama has prevented these people from thinking objectively....

[vaberella]

4. Exactly. It's very disheartening.

I really don't know what has caused this.

[dennis4868]

5. I think after 8 years of Bush....

people here still feel like they need to be upset about something and complain (without looking at all the facts surrounding an issue....(lots of knee jerk reactions).

[Scurrilous]

3. K & R

:thumbsup:

[chill_wind]

6. Susan Ito, ACLU

ACLU Lens:

New Executive Order Institutionalizes Indefinite Detention at Guantánamo
Mar 8th, 2011

Yesterday, President Obama issued an executive order that institutionalizes the ongoing indefinite detention of detainees in U.S. custody at Guantánamo Bay. As ACLU Executive Director Anthony D. Romero told the Washington Post, "It is virtually impossible to imagine how one closes Guantánamo in light of this executive order."

Furthermore, the Obama Administration reversed its January 2009 decision to stop bringing new military commission charges against Guantánamo detainees and announced that new trials will resume shortly. According to media reports, Abd al-Rahim al-Nashiri, who is suspected of planning the attack on the USS Cole in 2000, is likely to be among the first detainees charged in new commission proceedings. The ACLU's Denny LeBoeuf blogged recently of al-Nashiri's treatment:

The usual problems of the military commissions will arise in al-Nashiri's case. The admission of coerced testimony will be an issue. Since Attorney General Holder announced in 2009 that al-Nashiri would not be tried in federal court, there has been speculation that the government was afraid of the weakness of its evidence. And looming over it all will be the question of al-Nashiri's well-documented torture, and the extraordinary efforts by the government to hide the details of that torture.

U.S. officials waterboarded al-Nashiri. They bent him over backwards in a stress position until one of his interrogators worried that his arms would become dislocated. He was naked, hooded, shackled, and deprived of sleep. His "debriefers" blew smoke in his face, stood on his ankle shackles, and scrubbed his naked body with a stiff wire brush. His torturers hung him from the ceiling by his arms, while they were tied behind his back. And if these medieval torments were not enough to render a subsequent capital trial problematic, his torturers also revved a power drill next to his naked, hooded body. And racked a handgun near his head. "Once or twice".

http://www.aclu.org/blog/national-security/aclu-lens-new-executive-order-institutionalizes-indefinite-detention-guantana

In a statement in response to the Obama administration's announcements yesterday, Anthony said:

"The best way to get America out of the Guantánamo morass is to use the most effective and reliable tool we have: our criminal justice system. Instead, the Obama administration has done just the opposite and chosen to institutionalize unlawful indefinite detention – creating a troubling 'new normal' – and to revive the illegitimate Guantánamo military commissions."

http://www.aclu.org/national-security/president-obama-issues-executive-order-institutionalizing-indefinite-detention

[jeff47]

8. So the ACLU's position is Obama should violate the Constitution by seizing power from Congress? (nt)

[TheKentuckian]

10. He is going to violate the constitution in any event, my vote would be to violate

Congressional over-reach and an unconstitutional dictate of effective indefinite detention and force military tribunals.

Surely you don't suggest going along with Congress on this bullshit is a path to supporting the constitution?

In a no win scenario, doing the right thing is the best policy.

[jeff47]

12. Except it's not Congressional over-reach

The constitution grants Congress absolute power over spending. They passed a bill forbidding any federal money go to closing down Gitmo. That's completely within their authority.

"Surely you don't suggest going along with Congress on this bullshit is a path to supporting the constitution?"

I find separation of powers more important. Control of funding is the tool by which Congress restrains the executive branch. Weakening that is much more dangerous than doing half-ass "trials" for the prisoners at Gitmo.

"In a no win scenario, doing the right thing is the best policy."

Indeed, it's a no-win scenario, but the right thing is preventing a precedent that removes all effective power from Congress. Or would you have preferred W to privatize social security, invade 3 more countries, and exempt the wealthy from taxes, all by executive order?

[TheKentuckian]

16. Jeff, Congress is overreaching by setting up a system that dictates indefinite detention

and further subverts the right to a trial by the defendant's peers.

Those are direct subversions of the fundamental laws of the country. I am not questioning that Congress holds the purse but I am saying that power is being badly abused to such a degree that a legitimate constitutional power is being used to effectively override the very document that Congress derives it's power from.

The Precedent you fear setting does not exist, unless you consider operating under our fundamental laws and complying with legal treaties as removing the power of the purse from Congress.

In effect you are saying Congress should have no checks on the powers granted to it.

Maybe you should explain how this is a lawful use of Congressional authority. Are you saying indefinite detention can be lawfully ordered by Congress? Are you saying Congress can lawfully dictate defendants be put through military tribunals? Are you saying Congress can constitutionally void the right to a jury trial?

Are you saying that the power of the purse is so monolithic that Congress can just decide no more funding for the Federal courts and that all of those folks in the system just have to rot or accept whatever alternative Congress is willing to fund?

What other essential rights are you prepared to have strip mined to support that Congress has such unassailable and unchecked power of the purse that if they don't want to fund their enforcement that they just go poof?

I think you are walking on some pretty dangerous ground yourself and promise a fairly absurd set of precedents that leave Congress unchecked and able to subvert via accounting tricks every right, treaty, and obligation.

Please explain how the result of Congress' action here does not violate the constitution.

[jeff47]

17. Still not overreaching.

"I am not questioning that Congress holds the purse but I am saying that power is being badly abused to such a degree that a legitimate constitutional power is being used to effectively override the very document that Congress derives it's power from."

Then the appropriate remedy is to sue the government. Not for the executive branch to ignore the legislative.

"The Precedent you fear setting does not exist, unless you consider operating under our fundamental laws and complying with legal treaties as removing the power of the purse from Congress."

You are proposing that the Executive branch seize power from the legislative branch. You appear to be blinded by your goal. There are real, long-lasting implications of such a power grab which you can not wave away.

"In effect you are saying Congress should have no checks on the powers granted to it."

When it comes to spending, the Constitution provides no checks at all. As mentioned above, if Congress's spending decisions result in unconstitutional detention, then the Judicial branch has to order Congress to change those decisions.

"Maybe you should explain how this is a lawful use of Congressional authority. Are you saying indefinite detention can be lawfully ordered by Congress? Are you saying Congress can lawfully dictate defendants be put through military tribunals? Are you saying Congress can constitutionally void the right to a jury trial?"

Congress can use it's power to deny all of that. The remedy provided in the Constitution for the people in that situation is to turn to the Judicial branch. Not for the Executive branch to overrule the Legislative.

"Are you saying that the power of the purse is so monolithic that Congress can just decide no more funding for the Federal courts and that all of those folks in the system just have to rot or accept whatever alternative Congress is willing to fund?"

Yes, except that the Judicial branch can order the Legislative branch to provide funding. The Executive branch has no such power. The Executive branch can only veto spending bills in order to get its way.

"Please explain how the result of Congress' action here does not violate the constitution."

You've yet to explain how your remedy (Executive branch seizes power from the Legislative) is constitutional.

I used the examples from W's presidency to prove a point: You want Obama to seize power from Congress because you agree with the result. But you don't grant powers to the President based on the ones you agree with. You grant power to the President based on the ones you hate. The power you want to grant Obama will be available for any future "W"-style president. It _WILL_ be abused in ways you find abhorrent. And the abuse will harm far more people than are in Gitmo.

[TheKentuckian]

19. I do not want any power seized at all, what I want is dictates that clearly subvert the Constitution

to be pushed back on and if need be ignored.

The source of government authority cannot be subverted to protect it.

Congress is bound by the Constitution just like the rest of the government. They simply cannot dictate indefinite detentions or the requirement of a jury trial.

My problem is that you are well aware that Congress is illegally doing a hatchet job on the Bill of Rights and you don't give a fuck. Don't like my solution then present one but Congress has no power to kill natural rights.

Your argument that we only have such rights as Congress is in a mood to fund negates the entire basic concept of a right.

At bare minimum, the President should be challenging this bullshit in the courts but instead he signed off on this garbage without a peep.

[BlueIris]

9. Now, now. That's just the ACLU. So their insights hardly matter. nt

[frazzled]

13. Deborah Pearlstein, Princeton and Human Rights First

I hope you're not implying that the author the OP cites is, by contrast, chopped liver. Indeed, international and human rights law is her specialty

A graduate of Harvard Law School, where she served as articles editor of the Harvard Law Review, Pearlstein clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit, then for Justice John Paul Stevens of the U.S. Supreme Court.

Returning to academia from an active law practice in national security law and human rights, Pearlstein's scholarly interests include the powers of the executive branch and the role of the courts, and issues of international law enforcement in domestic courts. Her work has appeared in journals including the Harvard Law Review, Harvard Journal of Law & Policy, and Columbia Human Rights Law Review, and she has taught courses in national security law, international human rights and U.S. constitutional law at the University of Pennsylvania Law School, Georgetown University Law Center, Stanford Law School and at Princeton University. She has also served as a teaching fellow for undergraduates at Harvard College and for Masters Degree candidates at Harvard Law School.

From 2003-2006, Pearlstein served as the founding director of the Law and Security Program at Human Rights First, where she led the organization’s efforts in research, litigation and advocacy surrounding U.S. detention and interrogation operations. Among other projects, Pearlstein led the organization's first monitoring mission to the U.S. Naval Base at Guantanamo Bay, Cuba; prepared a series of briefs amicus curiae to the U.S. Supreme Court; and co-authored multiple reports on the human rights impact of U.S. national security policy, including Command’s Responsibility, which provided the first comprehensive accounting of detainee deaths in U.S. military custody since 2002, and received extensive press coverage worldwide.

http://lapa.princeton.edu/peopledetail.php?ID=429

[AtomicKitten]

7. Pres Obama has laid out four categories of disposition of the detainees:

1. Those who can be tried in federal court.
2. Those who will be brought before revamped military commissions.
3. Those ordered released by U.S. courts.
4. Those who can be transferred to other countries.

[TheKentuckian]

11. Don't forget the 48 or so that are to be held until hostilities end in our war on a tactic.

Or that tribunals are an effort to set up a kangaroo court that can deprive defendants of critical evidence to their case, cover up misconduct by the prosecution and our government, prevents the flow of information to citizens, and takes away the right to face your accusers as well as the right to a jury of your peers.

You cannot unscrew this pooch. The only constitutional courses of action are trial and release. All other plots are a willful and criminal evasion of the fundamental ideals of the nation.

[SkyDaddy7]

14. Military Tribunals are not that different from US Courts...

This is another misconception from what I can tell reading about it & listening to legal experts. This misconception can be seen coming from the voices on the Right calling for Military Tribunals because they think terror suspects have a greater chance of being convicted & getting harsher sentences & this is simply not the case! The US Courts have been far harsher & have convicted more terrorist than Military Tribunals. And since both Democrats & Republicans & the citizens of New York do not trust the US Constitution & the US Courts then President Obama has no other choice but to proceed like he is doing.

Of course none of this matters to the voices here on DU who would assume call President Obama an evil person who could care less about closing GITMO or using the US Courts despite the very fact President Obama tried to do both but was met with fierce opposition on both fronts! So, instead of getting behind Obama they choose to demonize him. SHAME!

[Badfish]

15. rec for truth.

[DFab420]

18. Glad to see

other clearer heads prevailing...

Kick and rec.

[Whisp]

20. ignorant or blatant liars.

there will be more here soon

[Name removed]

21. Deleted message

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