Feingold\’s Constitutional Objection to \’Prolonged Detention\’

May 25 2009

by John Nichols

05/24/2009. – Barack Obama’s speech last week at the National Archives, delivered with the Bill of Rights as a backdrop, eloquently expressed a president’s faith that it is possible to keep the nation secure while remaining true to the rule of law.

But civil libertarians heard sour notes, and U.S. Senator Russ Feingold, D-Wisconsin, shares their concerns.

In fact, the chairman of the Senate Judiciary Committee’s subcommittee on the Constitution has informed the president that he plans to hold hearings on aspects of the president plan that the senator bluntly describes as violations of basic American values that are “likely unconstitutional.”

At issue are Obama’s outline of his intention to maintain military commissions – which he once dismissed as unwise and unnecessary – and his proposal to allow for the “prolonged detention” without charges or trials of prisoners held by the United States.

“We welcome President Obama’s stated commitment to the Constitution, the rule of law and the unequivocal rejection of torture,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “But unlike the president, we believe that continuing with the failed military commissions and creating a new system of indefinite detention without charge is inconsistent with the values that he expressed so eloquently at the National Archives today.”

Center for Constitutional Rights President Michael Ratner was even tougher in his response.
“The president wrapped himself in the Constitution and then proceeded to violate it by announcing he would send people before irredeemably flawed military commissions and seek to create a preventive detention scheme that only serves to move Guantanamo to a new location and give it a new name,” argued Ratner.

CCR represents detainees at the U.S. government’s Guantanamo Bay facility, and the managing attorney for the group’s Guantanamo project, Shayana Kadidal added, “Preventive detention goes against every principle our nation was founded on. We have courts and laws in place that we respect and rely on because we have been a nation of laws for hundreds of years; we should not simply discard them when they are inconvenient. The new president is looking a lot like the old.”
That’s what worries Feingold.

In a letter prepared after reviewing the details of Obama’s Thursday speech, Feingold writes, “My primary concern… relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.”

Feingold’s concerns with regard to the president’s “prolonged detention” proposal are sufficiently deep that the senator has informed the president of plans to hold a Constitution subcommittee hearing with regard to the plan.

“While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked,” explained Feingold. ” Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.”
In particular, the senator who cast the chamber’s only vote against the Bush administration’s USA Patriot Act and who has been its most ardent advocate on civil liberties matters, expressed concerns about legal precedents that might be established.

“You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish,” Feingold wrote to Obama. “While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful.”

The senator also signaled an intention to press the administration for access to more information with regard to military commissions.

“Among the issues Congress must consider carefully is any resumption of the use of military commissions. Like you, I voted against the Military Commissions Act of 2006. I agree with you with regard to that statute’s many flaws, but it is not clear to me that those flaws can be fixed, or that the other options in the current federal criminal justice and courts martial systems for bringing the detainees to justice are insufficient or unworkable,” wrote Feingold, who Obama described as his senatorial role model. ” If Congress is to fully consider your proposal for military commissions, therefore, it will need access to the same information your administration is currently reviewing, including detailed, classified information on individual detainees and the extent to which other options are available.

A copy of Feingold letter can be read on the senator’s website at : http://feingold.senate.gov/pdf/ltr_obama_052209.pdf

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