Bill Quigley and Vince Warren Huffington Post 12/23/10

The right to liberty is one of the foundation rights of a
free people.  The idea that any US President can bypass
Congress and bypass the Courts by issuing an Executive Order
setting up a new legal system for indefinite detention of
people should rightfully scare the hell out of the American

Advisors in the Obama administration have floated the idea
of creating a special new legal system to indefinitely
detain people by Executive Order.  Why?  To do something
with the people wrongfully imprisoned in Guantanamo.  Why
not follow the law and try them?  The government knows it
will not be able to win prosecutions against them because
they were tortured by the US.

Guantanamo is coming up on its ninth anniversary – a
horrifying stain on the character of the US commitment to
justice.  President Obama knows well that Guantanamo is the
most powerful recruitment tool for those challenging the US.
Unfortunately, this proposal for indefinite detention will
prolong the corrosive effects of the illegal and immoral
detentions at Guantanamo rightly condemned world-wide.

The practical, logical, constitutional and human rights
problems with the proposal are uncountable.

Our system provides a simple answer developed over hundreds
of years – try them or release them.  Any other stop gap
measure like the one proposed merely pushes the problem back
down the road and back into the courts again.  While it may
appear to be a popular political response, the public will
soon enough see this for what it is – an unconstitutional
usurping of power by the Executive branch and a clear and
present danger to all Americans

The US government has never publicly said who can be
prosecuted and who they have decided to hold indefinitely
because they think they cannot successfully charge them.
Now, after holding people for years and years, they think
they can create a new set of laws by Executive Order which
will justify their actions?

Recall that dozens of the very same people who would now be
subject to indefinite detention have already been cleared
for release by the government. How can indefinite detention
of people we already cleared to go home possibly be legal?

The government proposes essentially to detain people for
being a potential member or friend of the enemy force – a
standard that is too open ended and inconsistent with the US
and international laws of war.

Our criminal process, requiring charge, conviction and other
safeguards, is the primary means by which the government may
deprive a person of liberty, with carefully limited

“Freedom from bodily restraint has always been at the core
of the liberty protected by the Due Process Clause from
arbitrary governmental action.”  The Supreme Court has
“always been careful not to “minimize the importance and
fundamental nature of the individual’s right to liberty.”
Foucha v Louisiana, 504 US 71 (1992).

The liberty of all persons is protected by the criminal
process guarantees, among other rights: the right to be free
from unreasonable searches and seizures; probable cause for
arrest; right to counsel, right to indictment by grand jury;
right to trial by an impartial jury; the right to a speedy
public trial; the presumption of innocence; the right that
government must prove beyond a reasonable doubt every fact
necessary to make out the charged offense; a privilege
against self-incrimination; the right to confront and cross
examine witnesses; the right to present witnesses and use
compulsory process; the duty on the government to disclose
exculpatory evidence; prohibition against double jeopardy;
prohibition against bills of attainder and ex post facto
laws; and a prohibition against selective prosecution.

For hundreds of years judges and legislatures and advocates
for justice have struggled to create protections for our
liberty.  People who suggest bypassing all of these
protections of our liberty in the name of safety or politics
do our people and our history a grave disservice.

Some wrongfully suggest that preventive detention by the
Executive would be allowed because the law already allows
civil confinement.  But there are only very narrow
circumstances when limited civil confinement is allowed by
law.  It is clear government cannot use civil detention or
anything like it to effect punishment or to escape the
comprehensive constraints of the criminal justice system.
Kansas v Crane, 534 US 407, 412 (2002) (noting that civil
commitment must not “become a mechanism for retribution or
general deterrence.

Further, preventive detention also violates international
law, specifically the International Covenant on Civil and
Political Rights (ICCPR), article 9.

The proposal to create a special new legal system by
Executive Order is an end run around Congress and the
Judiciary. It will lengthen the illegal detentions in
Guantanamo and will force this entire system back into the
courts for years. It will further damage US efforts to
portray itself as a fair country of laws, and will threaten
the liberty of every single US citizen who is not in
Guantanamo because it will damage the due process guarantees
which have built up over the years to protect each one of

[Vince Warren is the Executive Director at the Center for
Constitutional Rights (CCR).  Bill Quigley is Legal Director
of CCR and law professor at Loyola University New Orleans.
You can reach Bill at ]