I Didn't Vote For Barack Obama . . .

by Pejman Yousefzadeh on July 8, 2009

Which means, I don’t have to have the scales fall from my eyes over the President’s decision to claim “post-acquittal detention power.” To be sure, I agree with Mark Kleiman (no, that is not a typo) that we can keep prisoners of war for as long as necessary, but that doesn’t change the fact that the Obama Administration is essentially going to engage in show trials when it comes to a lot of the detainees affected by its most recent decision on detainee policy. In the strictest sense, the legal status of the detainees is affected by whether they are found guilty or not-guilty in these trials, but as Kleiman writes, if someone has engaged in warfare against the United States, that person “should be held as long as the conflict lasts, even if that turns out to be forever.” So irrespective of the outcome of a trial, the defendant will remain in prison, and that will mean that many of those trials are going to have no effect whatsoever on the lives of the defendants in question. And that means that the Obama Administration’s guarantee of a fair trial or due process for these defendants is utterly meaningless.

Glenn Greenwald properly hits on this point:

. . . this is the first time an Obama official has affirmatively stated that they have the “post-acquittal detention” power (and, to my knowledge, the Bush administration never claimed the power to detain someone even if they were acquitted).

All of this underscores what has clearly emerged as the core “principle” of Obama justice when it comes to accused Terrorists — namely, “due process” is pure window dressing with only one goal: to ensure that anyone the President wants to keep imprisoned will remain in prison. They’ll create various procedures to prettify the process, but the outcome is always the same — ongoing detention for as long as the President dictates.

[. . .]

After yesterday, we have to add an even more extreme prong to this policy: if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we’ll still just keep them in prison anyway by presidential decree.

[. . .]

Show trials are exactly what the Obama administration is planning. In its own twisted way, the Bush approach was actually more honest and transparent: they made no secret of their belief that the President could imprison anyone he wanted without any process at all. That’s clearly the Obama view as well, but he’s creating an elaborate, multi-layered, and purely discretionary “justice system” that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded. And for those who — to justify what Obama is doing — make the not unreasonable point that Bush left Obama with a difficult quandary at Guantanamo, how will that excuse apply when these new detention powers are applied not only to existing Guantanamo detainees but to future (i.e., not-yet-abducted) detainees as well?

Whatever else is true, even talking about imprisoning people based on accusations of which they have been exonerated is a truly grotesque perversion of everything that our justice system and Constitution are supposed to guarantee. That’s one of those propositions that ought to be too self-evident to need stating.

Again, along with Kleiman, I agree with the substance of the Obama Administration’s decision. But I also agree with Greenwald and Michael Goldfarb that in trying to get what I perceive to be the right result, the Administration is indeed trying to have its cake and eat it too.

And there is another point worth mentioning here: It looks like Dick Cheney was right. Despite Candidate Obama’s promises, President Obama does not have, and never had any intention whatsoever to give up the powers of the “Imperial Presidency.”

UPDATE: A reply to Mark Kleiman.

  • http://ajacksonian.blogspot.com/ ajacksonian

    Even further, as we use the framework of the Law of Nations as mentioned in the US Constitution, these individuals are violaters of that in de Vattel's work which was cited at the Founding and throughout the Constitutional ratification process by both Federalists and Anti-Federalists, and the powers therein supported by President Washington's citation of it for Neutrality in a conflict between other Nations. By that, in Book III, such individuals are guilty of committing Private War, outside the bounds of Nation States and covered by no law. That is not being nasty, but the brutal fact that, as Blackstone cites, these individuals have taken up their negative liberties to wage war against all Nations and are, thus, enemies of all mankind. By Norse and Common Law views they make themselves outlaw: outside the protection of any law.

    As the US Constitution allows for the penalties of the Law of Nations, we are far too kind on the civil side to give pirates mere life imprisonment, and yet that is the most those fighting private war can expect from us. The concept of illegal enemy combatant is illegal to the Law of Nations, and the savagery of such individuals places themselves into that category by their choice. At any point up to their capture they could submit to the judgment of civil law. They do not and are thus using the Law of Nature as their guide. We used to understand this in America, as Lincoln put that into the General Orders 100 for the Army which lasted from 1863-1895.

  • Bitemycrank

    Who designed this site? Comments that are white on a pink background?? Thanks for the headaches!

  • Pejman_Yousefzadeh

    1. What browser are you using. None of us have ever encountered this problem before. My screen is just fine, and I am using Firefox.

    2. You may want to pick a classier user name. Just a thought.

  • newledger

    We're aware of a display problem for Disqus with some versions of Internet Explorer for the site. We expect to have them resolved by next week. Until then, Firefox or Safari should work for you.

  • Bitemycrank

    Thanks for addressing my concern, newledger. I'd hate to have this be a site whose comments I can not read. I'm glad it's a known issue and is being resolved.

    Regarding my non-classy username; I only wished to bring the issue to your attention and was forced to choose a name. I will not comment again using this name. Nor will I comment again until your comments are visible to those of us stuck using IE.

  • JD1

    Hello, I am using IE8 and the comment section is unreadable. You have to select each comment to read it. Otherwise comments show as white on peach or white on white…the prompts for email, username, password show as white on white.

  • pcarro11

    You fail to understand a simple concept: The One won. So now he gets to do whatever he wants. Well, mostly he gets to distribute spoils to his supporters. That's the Chicago way.

  • peterquinn

    Nobody has seemed to notice that President Obama is suffering from foot in mouth disease. It comes from not thinking – those damn teleprompters say things that confuse … and cause so much extra work and obfuscation.

  • peterquinn

    Nobody has seemed to notice that President Obama is suffering from foot in mouth disease. It comes from not thinking – those damn teleprompters say things that confuse … and cause so much extra work and obfuscation.

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