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.
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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