Friday, December 24, 2010

Making the unacceptable "legal" (in this case, indefinite detention without trial) via Executive Order (but it's still unconstitutional)/ HuffPo

Bill Quigley (Loyola University Law Professor) and Vince Warren (both associated with the Center for Constitutional Rights) discuss Obama's newest Executive Order:  one designed to uproot the 5th Amendment's requirement for due process and the 6th Amendment's rights of the accused, including the right to a speedy trial.  Here is their report on Huffington Post:
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...
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?

... "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...
Or at least it seemed to be like that in the USA, once upon a time...

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