As bad as Bush?

Last April, I detailed the abuses of power of the previous administration regarding, among other things, the indefinite detentions of certain captured individuals.  Well it turns out the Obama administration is claiming the same power.  After coming into the office advocating the closing of Gitmo and the trying of suspected terrorists and others who attacked our country, it seems that the Obama administration might simply detain certain individuals indefinitely.  One of the most prominent people that Obama and his DOJ said would be tried in federal criminal court was Khalid Sheik Mohammed, the man suspected as being the mastermind behind 9-11.  President Obama said he would be tried in federal court in NYC.  Well, now it turns out that because of political pressure from Congress and NY politicians, KSM will not be tried in NY or anywhere.  Rather, he will be detained indefinitely based powers claimed under the laws of war.  Will he be tried in NY any time in the future?  Maybe.  And most likely only if others being tried in NY courts are convicted of terrorists bombing.  If those others are found not guilty, Obama will most likely not try KSM in federal court.  That is an interesting way of determining whether to give someone Due Process, a right to an open and fair trial, and right to confront one’s accusers–whether we know we will win.

To those who defend this unprecedented grab of power, I have a few questions:  What if it turns out that we are wrong?  What if KSM did not mastermind the attacks on NY and Washington in 2001?  What if the man in Gitmo is not KSM?  Would we stand for indefinite detention of American citizens whether captured here or abroad?  Our history and constitution teach us that the executive branch has no right to indefinitely hold people.  In fact, the only individual right specifically enumerated into the original constitution, before the Bill of Rights, was the right to habeas corpus–the right to force the executive branch to justify its detention of an individual.

At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest.

See Ins v. St. Cyr. Furthermore, the bill of rights added the right to be free from deprivations of liberty without due process of law (5th Amendment), the right to a trial (6th Amendment), and the right to confront one’s accusers (6th Amendment).  All of these rights are being denied to those at Gitmo.    

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