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A Brief History of Indefinite Detention

John on June 28, 2009 at 10:38 am

From CNN, December 18, 2003:

[T]he latest ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals adds more legal ammunition to criticism over the constitutionality of the White House’s war on terror, stemming from September 11, 2001, attacks…

“Today’s court decision should serve as a further reminder to the Bush administration that the practice of indefinite detention without charge or trial is wrong and should be repudiated at home as it is abroad,” said Vienna Colucci, international justice specialist for the human rights group Amnesty International.

From the Boston Globe, December 19, 2003:

A federal appeals court ruled yesterday that President Bush does not have the power to order that a US citizen captured in this country be held indefinitely as an “enemy combatant,” the biggest judicial setback for the administration so far in the war on terrorism.

A second rebuff came a few hours later when another federal appeals court ruled that foreign citizens held at the American naval base at Guantanamo Bay, Cuba, can file challenges in US courts to their indefinite detention — an issue already before the Supreme Court.

From the Washington Post, June 29, 2004:

The court roundly rejected the president’s assertion that, in time of war, he can order the “potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing,” to quote the court’s opinion in the case of foreign prisoners held at the U.S. base in Guantanamo Bay, Cuba…

Given that the administration has said its war on terrorism might stretch over generations, Justice Sandra Day O’Connor wrote, the “indefinite detention” of a prisoner “could last for the rest of his life.” And that, the court said, is too long to do without the basics of due process.

From Jane Mayer’s book length indictment of Bush’s War on Terror policies titled The Dark Side:

Beginning almost immediately after September 11, 2001, Cheney saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror.

As part of that process, for the first time in its history, the United States sanctioned government officials to physically and psychologically torment U.S.-held captives, making torture the official law of the land in all but name.

The lawyers also authorized other previously illegal practices, including the secret capture and indefinite detention of suspects without charges. Simply by designating the suspects “enemy combatants,” the President could suspend the ancient writ of habeas corpus that guarantees a person the right to challenge his imprisonment in front of a fair and independent authority.

From the Daily Mail, June 11, 2006:

Three Guantanamo Bay inmates have killed themselves in an apparent suicide pact. American commanders at Guantanamo revealed last night the men had all hanged themselves with nooses made of sheets and clothes.

The deaths – the first at the American base in Cuba since it began holding prisoners in the War on Terror in 2002 – are believed to be a protest at the indefinite detention of suspects.

From The Washington Post, September 10, 2006:

By virtue of his analysis, Posner even criticizes a few Bush administration decisions. He questions, for instance, the decision to suspend the right to habeas corpus of U.S. citizens or foreign terrorism suspects captured in the United States, because he thinks the cost of indefinite detention exceeds the gain in public safety. It is precisely this kind of exercise that makes Posner’s book so important, as voters begin the preelection analysis of which elements of the president’s surveillance, detention and prosecution strategy have made us safer — and which have made us less free.

From tThe NY Times, March 4, 2007:

One of the new act’s most indecent provisions denies anyone Mr. Bush labels an “illegal enemy combatant” the ancient right to challenge his imprisonment in court. The arguments for doing this were specious. Habeas corpus is nothing remotely like a get-out-of-jail-free card for terrorists, as supporters would have you believe. It is a way to sort out those justly detained from those unjustly detained. It will not “clog the courts,” as Senator Graham claims. Senator Patrick Leahy of Vermont, the Democratic chairman of the Judiciary Committee, has a worthy bill that would restore habeas corpus. It is essential to bringing integrity to the detention system and reviving the United States’ credibility.

From the Christian Science Monitor, June 13, 2007:

Specifically the majority judges said the president’s actions were not authorized under Congress’s 2001 Authorization for Use of Military Force against Al Qaeda. In addition, they said the indefinite detention was not authorized under the president’s inherent constitutional authority as commander in chief.

From The Washington Post, December 5, 2007:

The administration at almost every turn has resisted extending meaningful rights to those it holds as enemy combatants. In Afghanistan, simple hearings to determine prisoners’ status would have kept the United States clearly within Geneva Conventions guidelines; the administration balked. After the Supreme Court held that a federal habeas statute gave Guantanamo detainees the right to challenge their detentions in federal court, the administration, with the help of congressional allies, tried to strip the courts of jurisdiction. It created military tribunals to judge whether detainees were “enemy combatants” subject to indefinite detention, along with special commissions for criminal trials.

From The Hill, June 26, 2009:

The Obama administration is considering issuing an executive order that would allow the government to indefinitely detain some of the prisoners now at Guantanamo Bay, according to published reports on Friday evening.

From the NY Times, June 26, 2009:

Those detainees, including prisoners at Guantánamo and others who might be captured in the future, would have the right to legal counsel and access to some of the information used as the basis for their incarceration, the report stated.

Where is the change here?

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