Later On

Life imprisonment based on suspicion: I never thought I’d see it in the US. Greenwald:

One of the most intense controversies of the Bush years was the administration’s indefinite imprisoning of "War on Terror" detainees without charges of any kind.  So absolute was the consensus among progressives and Democrats against this policy that a well-worn slogan was invented to object:  a "legal black hole."  Liberal editorial pages routinely cited the refusal to charge the detainees — not the interrogation practices there — in order to brand the camp a "dungeon," a "gulag," a "tropical purgatory," and a "black-hole embarrassment."  As late as 2007,Democratic Senators like Pat Leahy, on the floor of the Senate, cited the due-process-free imprisonments to rail against Guantanamo as "a national disgrace, an international embarrassment to us and to our ideals, and a festering threat to our security," as well as "a legal black hole that dishonors our principles."  Leahy echoed the Democratic consensus when he said:

The Administration consistently insists that these detainees pose a threat to the safety of Americans. Vice President Cheney said that the other day. If that is true, there must be credible evidence to support it. If there is such evidence, then they should prosecute these people.

Leahy also insisted that the Constitution assigns the power to regulate detentions to Congress, not the President, and thus cited Bush’s refusal to seek Congressional authorization for these detentions as a prime example of Bush’s abuse of executive power and shredding of the Constitution.

But all year along, Barack Obama — even as he called for the closing of Guantanamo — has been strongly implying that he will retain George Bush’s due-process-free system by continuing to imprison detainees without charges of any kind.  In his May "civil liberties" speech cynically delivered at the National Archives in front of the U.S. Constitution, Obama announced that he would seek from Congress a law authorizing and governing the President’s power to imprison detainees indefinitely and without charges.  But in September, the administration announced he changed his mind:  rather than seek a law authorizing these detentions, he would instead simply claim that Congress already "implicitly" authorized these powers when it enacted the 2001 AUMF against Al Qaeda — thereby,as The New York Times put it, "adopting one of the arguments advanced by the Bush administration in years of debates about detention policies."

Today, The New York Times’ Charlie Savage reports:

The Obama administration has decided to continue to imprison without trials nearly 50 detainees at the Guantánamo Bay military prison in Cuba because a high-level task force has concluded that they are too difficult to prosecute but too dangerous to release, an administration official said on Thursday.

The Washington Post says that these decisions "represent the first time that the administration has clarified how many detainees it considers too dangerous to release but unprosecutable because officials fear trials could compromise intelligence-gathering and because detainees could challenge evidence obtained through coercion."  Once that rationale is accepted, it necessarily applies not only to past detainees but future ones as well:  the administration is claiming the power to imprison whomever it wants without charges whenever it believes that — even in the face of the horrendously broad "material support for terrorism" laws the Congress has enacted — it cannot prove in any tribunal that the individual has actually done anything wrong.  They are simply decreed by presidential fiat to be "too dangerous to release."  Perhaps worst of all, it converts what was once a leading prong in the radical Bush/Cheney assault on the Constitution — the Presidential power to indefinitely imprison people without charges — into complete bipartisan consensus, permanently removed from the realm of establishment controversy.

There are roughly 200 prisoners left at the camp, which means roughly 25% will be held without any charges at all.  Using the administration’s perverse multi-tiered justice system, the rest will either be tried in a real court, sent to a military commission or released.  What this means, among other things, is that the President’s long-touted policy of closing Guantanamo is a total sham:  the essence of that "legal black hole" — indefinite detention without charges — will remain fully in place, perhaps ludicrously and dangerously shifted to a different locale (onto U.S. soil)but otherwise fully in tact.  The U.S. Supreme Court ruled in 2008 that the Military Commissions Act unconstitutionally denied the right of habeas corpus to Guantanamo detainees — a principle the Obama administration has vigorously resisted when it comes to Bagram detainees — but mere habeas corpus review does not come close to a real trial, which the Bill of Rights guarantees to all "persons" (not only "Americans") before the State can keep them locked in a cage…

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