"In our constitutional system, prolonged detention should not be the decision of any one man."

[phleshdef]

"If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

This is the part that everyone misses. President Obama is saying that he is getting every power of the government involved and that the end result WILL be in line with the rule of law. He isn't relying on White House lawyers or lone allies in the Supreme Court to carry this out. He isn't issuing right and left executive statements while shutting out consultation from everyone else. He is handling a very difficult issue that concerns how to deal with a handful of detainees who are actual terrorists but whos cases against them have been severely tainted, by getting everyone involved to come up with a solution. Until then, he is going to continue to detain some people, and they won't be tortured.

[Old Hank]

1. We already know that

You ssay that Obama says that the "end result" will be in line with the rule of law.

But some don't see how the end result could possibly be in line with the rule of law. Look at Rep. Jim McCovern's opinion:

Democratic Rep. Jim McGovern of Massachusetts gave Obama “credit for taking the issue on in a straightforward way,” but said only that “I’d be interested to see what he’s proposing” on a constitutional system of preventive detention. “Maybe he’s a smarter man than I,” McGovern said, but “I can’t think of a system that fits within the Constitution.”

I agree that we have to wait and see. But I wouldn't argue that because Obama said so, he will fix
Bush's military commissions.

http://blogs.cqpolitics.com/balance_of_power/2009/05/on-detainees-consulting-congre.html

[phleshdef]

6. If he truly gets the congress and the courts highly engaged...

...then I think the chances of this turning out legally sound are dramatically higher.

[Oregone]

15. Arbitrary detention without trials or charges cannot be constitutional

It would be easier to just burn the constitutional than labor on mental gymnastics to make this work.

[Thothmes]

19. On the surface, that should be the case

But the Supreme court in at least 2 cases filed as a result of the detention of the Japanese Americans during WWII, sided with the Governments right to detain those people without trial or charge. I do believe a third case before the court was decided in the internees favor, but that was after the war.

[Oregone]

22. True. A depraved Supreme Court upheld unconstitutional actions (creating legal precendence)

But, as far as that tells me, is that the Constitution was therefore meaningless then, and now (even according to the Supreme Court), and therefore it should never be reference again when talking about political decisions.

[Thothmes]

30. We will still use the Court to try and settle issues

like this one. Sometimes they will get it right, sometimes they will get it wrong. We will either have to live with the decision or change the law.

[elleng]

27. and it WON'T be arbitrary.

Got it???

[Oregone]

31. Any detention without a trial and sentence is pretty much arbitrary, by nature

[elleng]

33. They're 'enemy combatants,' I think.

Such don't get released during wartime. Unfortunate that definitions and other 'niceties' are messed up at the moment. (thanks to george etc.)

I do think this situation will be noted by historians.

We've got a 'war without end,' potentially, and 'we' dragged a bunch of folks from 'battlefields.' Some of the folks were not at all involved in 'battle,' were purely innocent bystanders, some were minor, short term 'fighters,' and some, the small number about whom we're particularly concerned now, were important planners or others so involved as to be true liabilities if ever to be released.

[leftofthedial]

2. prolonged detention itself is contrary to the Constitution AND international law

no matter who the "decider(s)" is/are.

[phleshdef]

3. Where in the constitution does it define how long someone has to wait to be tried?

I'm not being a smart ass, but I seriously don't know of any part.

[leftofthedial]

11. Sixth Amendment

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

"prolonged" is the antonym of "speedy"

"cannot be tried" precludes the public trial guaranteed by the Sixth Amendment.

The Fourth Amendment also applies, in that long precedent establishes that arrest is a form of seizure.

The Eighth Amendment prohibition against excessive bail (infinite, or denied, in the case of prolonged detention) and against cruel and unusual punishment would also seem to apply, since this new category created by fuck-up bush and now being sanctified by Obama, has no precedent outside this specific circumstance, which is the very epitome of "unusual."

[BzaDem]

32. Sorry, but many of these cases are not 'criminal prosecutions.'

No court has ever held that suspected terrorists captured abroad retain all 6th amendment rights. According to the Supreme Court, they do get a hearing, but it is not necessarily public, it certainly doens't need to involve a jury, and the compulsory process for obtaining witnesses may be limited. These limited rights for those captured abroad do not follow from the sixth amendment (since we are not talking about criminal prosecutions), but instead follow from the right to Habeas Corpus and Due Process.

[leftofthedial]

34. Sorry back at you. They are one of the following:

+ prisoners of war (but there is no war, so that is iffy at best, plus it has been rejected by the executive branch)

+ subjects of criminal prosecution (the one category, if they are indeed "terrorists," to which their circumstances would seem to correspond)

or

+ kidnap victims



The unitary executive inventing some extra-legal category for them, then using that status as a rationale for voiding the Constitution is not compelling.

[atreides1]

12. You've heard the term "Speedy Trial"

Sixth Amendment of the U.S. Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.



Defendants in criminal cases have the right to a speedy trial. The U.S. Supreme Court laid down a four-part ad hoc balancing test for determining whether the defendant's speedy trial right has been violated in the case of Barker v. Wingo:

1.Length of Delay: A delay of a year or more from the date on which the speedy trial right "attaches" (the date of arrest or indictment, whichever first occurs) was termed "presumptively prejudicial", but the Court has never explicitly ruled that any absolute time limit applies.

2.Reason for the delay: The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations.

3.Time and manner in which the defendant has asserted his right: If a defendant acquiesces to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed.

4.Degree of prejudice to the defendant which the delay has caused.





In Strunk v. United States, 412 U.S. 434 (1973), the Supreme Court ruled that if the reviewing court finds that a defendant's right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned. The Court has held that, since the delayed trial itself is the state action which violates the defendant's rights, no other remedy would be appropriate. Thus, a reversal or dismissal of a criminal case on speedy trial grounds means that no further prosecution for the alleged offense can take place.

[phleshdef]

18. Are these cases considered "criminal prosecutions"?

[elleng]

28. 'These cases' will be unique

and not criminal, imo, as they will have arisen from a field of war; essentially, enemy combattants, eh?

[Oregone]

17. LOL

[leftstreet]

4. He's the Unitary Executive. He can do whatever he wants n/t

[vaberella]

13. No he can't or he won't allow that. Or he wouldn't be any better than Bush, who did use that.

To our own detriment. We're in this mess because of Bush's mistakes. He doesn't want to allow us to enter that same problem again. Bush/Cheney use their Unitary Executive power to fuck up our national security, our standing in the world, and put us in the mess we're in where we have people who have some evidence against them but because of the actions taken or not taken the evidence is faulty but they do propose a threat.

This shit is so not easy.

[PretzelWarrior]

29. Pardon me.....but THEY WEREN"T MISTAKES

these were cold, calculating wrongs perpetrated by a criminal. Bush is not as evil as Cheney. But that is like saying dog shit doesn't smell as bad as chicken shit. They are both bad men.

[ClarkUSA]

5. Exactly. Pres. Obama wants any WH plan to be subject to approval by Congress and the courts.

[atreides1]

7. The Rule of Law must be adjusted

In order to justify the permanent detention of someone based on what they might do, requires that the "rule of law" be adjusted.

To lock anyone up without charging them with a crime goes against what the US Constitution allows in its current form.

[NYC_SKP]

9. I don't think we can retroactively apply new "adjusted law" to past detentions.

I'm not saying I have a solution, just that I don't think this would work on those already detained.

:shrug:

[boppers]

23. We lock lots of people up without charging/convicting them of crimes.

We always have.

A short list:
POW, mentally disabled (danger to self or others), people who would be tortured if deported.

[NYC_SKP]

8. From all the critics, I've yet to read a SINGLE alternative solution.

And I find that most revealing!

My theory, Obama's preliminary outline of what to do is about the best we can get.

I invite anyone to show me exactly what to do with each of the categories of detainees the President described.

[vaberella]

10. It's an extremely difficult situation. Since there is evidence.

It's just the fact that we've lost our abilities to properly indict the perpetrators due to the mistakes made by the Bush admin. I'm at a loss.

[NYC_SKP]

14. And you just KNOW the Cons knew this would happen. The shit would stick to Obama...

Ratfuckers!

What I hate even more is that they're getting so much help from the left in making it stick!!!

:wtf:

:nuke:

[leftofthedial]

16. the only legal recourse is to either try them or let them go.

If we "cannot" try them, whoever is responsible for tainting the evidence needs to be held accountable.

[rug]

20. Try them in federal court. Try them in the Hague. If you can't do either, release them.

[phleshdef]

21. Actually, I think getting the UN involved with the Hague is a GREAT idea.

[NYC_SKP]

25. I like that, good answer. Thanks. eom.

[ProSense]

24. Is America a "constitutional dictatorship"?

Sandy Levison

[elleng]

26. EXACTLY!

And the most important! (tho I do enjoy listening to his entire scholarly dialogue.)

Thanks SO MUCH, phles!

:toast: