Legal Commentary

Obama Considering Unconstitutional Imposition Of Preventive Detention Policy

By Big Tent Democrat

(See also Prof. Darren Hutchinson.) Glenn Greenwald:

When Obama first unveiled his "preventive detention" policy, many defenders praised him (and claimed he was different than Bush) because of his vow that -- as he put it -- "my Administration will work with Congress to develop an appropriate legal regime." But now, relying exclusively on three Obama officials speaking behind a veil of anonymity, Peter Finn and Dafner Linza of The Washington Post and ProPublica report that the White House is "crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely."

(Emphasis supplied.) Outside of a theater of war, the President has no such Constitutional authority as the Supreme Court has ruled repeatedly in the last decade. This is a settled legal question. Glenn probably thinks of me as a "praiser" of Obama's previous statements on preventive detention. Whatever. My pieces speak for themselves. What I have NEVER praised is the idea that the President has the unilateral power to hold anyone indefinitely outside of a theater of war. Not only must Congress pass enabling legislation - the legislation must pass Constitutional muster (which means judicial review of the Presidential detentions) and must also comply with the Geneva Conventions. What Obama is reported to be contemplating is simply outrageous and unacceptable. It is Bushism on steroids. It would be unconstitutional. It would be struck down by the Supreme Court. It must be rejected and if Obama is even considering it, it is to his great discredit. It would be the most outrageous and offensive action Obama could take short of reimposing Bush's torture policy.

Speaking for me only

Full post as published by TalkLeft on June 27, 2009 (boomark / email).