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By Thomas Vincent
Interested readers are invited to check out Tom's Political Blog "Certain Doubt"
Along with many others in my circle of friends I have been scratching my head over the recent decision by the Obama administration to continue the Bush administration policy on indefinite detentions.
Recently I had a conversation with a friend about indefinite detentions. He expressed the opinion that indefinite detention was "a useful tool," While I can understand this opinion I couldn't disagree more. A president may well grasp for any tool within reach to deal with terrorists which the government feels would be difficult to try in a court of law. However, I believe that Habeus Corpus and the right to a fair trial are too important to be thrown away for the sake of convenience. Furthermore, president Obama's campaign assertion that if elected he would close Guantanamo and work to restore the rule of law with respect to things like torture flies in the face of his decision to maintain presidential authority to unilaterally side step the court system in favor of military tribunals, an arbitrary and capricious system which leaves virtually all who get swept up in it in legal limbo, incarcerated without trial, without charges and even without access to legal representation.
My friend further stated that "Indefinite detention doesn't negate habeas corpus as long as there is a sufficient hearing." I am not a lawyer. However, even as a lay person, I fail to see how indefinite detention doesn't put a serious crimp in the notion of habeus corpus and the right to a fair trial. From Wikipedia:
A writ of habeas corpus is a summons with the force of a court order, addressed to the custodian (a prison official for example) demanding that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine if the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then he must be released from custody. The prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus.
If the executive claims for himself and himself alone the ability to detain an individual indefinitely, without any oversight, where does a prisoner's right to habeus corpus come in? Without a legal system in place which allows for an appeal of one's detention, is not the process of arrest and detention - or if we are to be truly honest, imprisonment - arbitrary , subject not to the will of a recognized legal authority but instead to the whims and convenience of a single individual?
Recognize here we are not dealing with the minutae of the president's constitutional power. Any leader may well claim he has the the ability to detain individuals based on some nebulous war powers granted by a compliant legislature. What I am arguing is that by expanding his power to arrest and detain individuals without right of appeal, Obama is negating the legal system upon which the legitimacy of his office rests. He is like the fish who, by dreaming of flight, negates the existence of the very water which he needs to survive. (sorry, I've been reading too much Zizek.)
When one gets to the matter of a right to a fair trial things get even stickier.
Habeas corpus ... is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law then habeas corpus may not be a useful remedy.The truly heinous thing about the President's decision to continue Guantanamo and reinstate military tribunals is not the denial of Habeus Corpus but the denial of the right to a fair trial. If one allows for indefinite imprisonment - with no right to a fair trial - doesn't this negate our entire legal system? "Okay sure," you say, "but the detainees in Guantanamo are foreigners and terrorists to boot." The president is well within his rights to classify terrorists differently than ordinary citizens." The problem with this stance is that our legal system is based upon the notion that anyone accused of a crime is innocent until proven guilty. The moment you throw this away, the moment you make a differentiation between American citizen's legal rights and the rights of those suspected of terrorism you are creating two separate sets of laws. The way I see it, in order to have a fair and just system of laws you can't have one set of rules that apply to one group of people and another set that applies to another. To do so would be to declare a kind of legal apartheid. For example, are the "detainees" in Guantanamo any less deserving of legal respect and rights because George W. Bush or Barrack Obama decide that they are "terrorists" or "unlawful combatants?"
I don't see the president Obama's actions as a slippery slope. I see them as a double standard. I see them as blatant hypocrisy; a fundamental re-writing of hundreds of years of established legal precedent. As he has studied constitutional law, Obama has to recognize the dangers of the precedents he is setting. He may feel capable of applying an expanded presidential power over imprisonment. But what of the next president? Or the president after that? Once you open the door to allowing presidents the authority to decide who is to be locked up without trial you close the door on equality and justice. Personally I don't see indefinite detention as morally, ethically, or legally right, regardless of how and why it is being used. If I am thrown in jail indefinitely, solely on the say-so of a president, premier, dictator or any other autocrat, without right to a fair trial, to face my accusers or even know what it is that I am accused of, I fail to see how that decision making process can in any way be considered fair and impartial.
If you were thrown in jail in this manner would you think you had received a fair shake?
I doubt it.
Interestingly, the Wikipedia article contained this tidbit:
The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom.
The irony of a writ originally issued in the name of a ruler to protect his subjects from the excesses of the courts now applied to protect the subjects from the excesses of the ruler himself seems somewhat poignant.
All the best for the New Year.