Monday, May 25, 2009

Reality Check

Mr. President, “indefinite” or “preventive” detention is not compatible with the rule of law. Merely saying that it is does not make it so. A person cannot lawfully be detained without charges. To do so is in essence an act of unchecked executive power. Even if the Congress were to authorize such detention, it would violate our principles as a nation. Human rights are not privileges bestowed by the government, at the whim of whatever individuals are “in charge.” If we were founded upon trust in the benevolence of authority, we would not need a Constitution. In that case, a king would suffice for us. It is of no account whether the people trust you as a leader more than they trusted your predecessor, when there is no safeguard against abuse of power. A benevolent ruler may always be succeeded by a tyrant. The concept of inalienable rights was established precisely for this reason.

You talk about detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. This is double talk. If they have committed crimes, they can and should be prosecuted. To say that they cannot be prosecuted is to say that you have no case. It creates a system of perpetual imprisonment without due process. If the executive has the power to determine that someone poses a danger to the American people, and yet not have a case, that means that the executive’s power is unchecked by the rule of law. There is nothing to prevent a President from declaring that his administration’s domestic political enemies pose a security threat. As far as I can tell, the only safeguard you are offering against this untrammeled power is trust in your character. Even if I were to accept this as a valid safeguard (which I don’t, since I retain a healthy mistrust of all politicians who claim special powers not stipulated in our Constitution), it would still not protect us from the ambitions of a future untrustworthy President.

There is nothing to prevent the “indefinite” detention of a U.S. citizen deemed to be “dangerous” by the White House. In fact, this was already done in the case of Jose Padilla. The supposed guilt of a suspect has been used over and over as a justification for the violation of our Constitution. There is nothing in what you have said that bars that practice from continuing.

This is supposed to be a nation of laws, and not of men. The fact that you are turning from some of the flagrant abuses of the Bush administration does not give you permission to continue using such spurious claims of executive power in your current administration. I regret to say that I will be unable to vote for you again if you continue to adhere to this line. No, I will not vote for your Republican opponents, who openly advocate lawlessness. But I can stay home on election day. There are certain things that I cannot in good conscience tolerate. The fundamental principles of our republic, including the ancient and venerable writ of habeas corpus, and the 6th Amendment to the Bill of Rights, are not negotiable. I know that I am not the only one who feels the way. To take supporters like us for granted, as if our votes belong to you, could be a serious mistake. I urge you to follow your profession of faith in the Constitution, in actions as well as words. Otherwise I must vigorously oppose you. And I will not be alone.


Mahakal / महाकाल said...

He can declare them Prisoners of War and detain them under the Geneva Conventions. That is consistent with out constitutional and treaty obligations.

Mahakal / महाकाल said...

should be "our" constitutional and treaty obligations.

fiddler said...

Mahakal, there are several problems with POW status as well: because the so-called War on Terrorism is fought not against a clearly defined, tangible enemy with specific loyalties and allegiances but against a tactic that could be used by anyone with any agenda, the whole world is the battlefield of this "war". At the same time, combatants are not, as in traditional wars, clearly and immediately recognisable (wearing uniforms and being in the process of fighting), therefore a fact-finding process relating to the status of the detainee becomes indispensable. In democracies, ruled by law instead of men, such a process is called a trial and is conducted by courts. It's not conducted by asking the President. He's a man, remember, not the law.
The other problem is that POW status is designed to be temporary, as long as the hostilities with the prisoner's affiliate party continue. A "war" on a tactic instead of against a party could well last generations, if not forever. In fact, the prisoner needs not be affiliated with any group at all to be considered a possibly-future-terrorist-if-set-free. (If he has already committed terrorist acts, then he's by definition punishable by law, in a regular court.)

DED said...

Glad to see that we're in the same camp on this one, Dash.