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The Obama Administration's Indefinite Detention Policy: The Return Of The President As King?

By Big Tent Democrat

In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. - President Barack Obama, May 21, 2009

December 21, 2010 ProPublica report on the proposed Obama Administration executive order on indefinite detention:

[T]he [proposed] order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

(Emphasis supplied.) The proposed executive order reported on by ProPublica is not only a violation of the promises made by the President himself; in my view, it is likely a violation of the Geneva Conventions and the Constitution. I'll explain my view on the flip.

Back in May of 2009, I wrote a very long post articulating my view that the indefinite detention policy that was being discussed by the Obama Administration could be compliant with the Constitution and the Geneva Conventions. At the time, the President stated that indefinite detentions would be subject to periodic judicial review.

The key to my analysis was the President's statement that:

If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight[.]

The reported proposed executive order on indefinite detention violates this condition. Instead, it reverts to the Bush system that President Obama criticized by saying "we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone." Now the Obama Administration appears to be proposing an indeifinte detention system that indeed is based "simply on what [he] or the executive branch decide alone."

Such a system is in violation of the Geneva Conventions and the Constitution. It would be a travesty, and likely, a war crime.

Speaking for me only

Full post as published by TalkLeft on December 22, 2010 (boomark / email).