At a Senate hearing yesterday, Department of Defence General Council Jeh Johnson testified that even for those Guantanemo detainees to whom the Obama administration allows a trial (as opposed to a military tribunal), President Obama still has the power to continue indefinitely imprison those acquitted at trial. Johnson called this detention "presidential post-acquittal detention power" and it represents an unparalleled executive power grab which moves the Obama administration ever further from the principle of rule of law than the Bush administration. And that's saying something.
What indefinite detentions means is that anyone the President wants to keep imprisoned will remain imprisoned. Obama's indefinite detentions ensures that "real" trials will only be allowed for those detainees it is certain it can convict. Detainees who are not a "sure thing" for conviction in court will not get a trial but rather a hearinsg in a closed military commission. And those who do not get a conviction in the military commissions will be imprisoned anyway, preventatively.
I believe Glenn Greenwald said it best: Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).
With his indefinite detention policy, President Obama is saying just the opposite, that it is the outcome that is constant. Detainees all end up in jail. The Executive chooses the process a detainee gets but the ultimate goal is ensuring convictions.
And thus I find myself in the strange and uncomfortable position of missing President Bush. Although he was a repugnant leader in many ways, at least he was honest about his ideology. I would argue that those who voted for Bush knew what they were getting: a conversative figurehead who would promote the interests of big business, private corporations and government intrusion into the private rhelm. But us poor saps who voted for Obama believed we were voting for civil liberties, the prominance of the rule of law and progressive change. In the end, we got another Bush--Bush Squared--even more willing to exert executive power in slashing habeas corpus rights. And yet, he is so shiny! And smart! And hip! And so, we love him.
And yes, even I love him. Sadly, I admit it. I've been reading his book Dreams From My Father, and it is just the most amazing book I've read all year. He wrote it after law school about his experiences as a biracial American. There were many times I had to put the book down to ruminate on a particular point. It's just that good. Dammit!
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