Obama’s Liberty Problem

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 people.

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 exceptions.

“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 us.

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




Bill Quigley teaches law at Loyola University New Orleans and can be reached at quigley77@gmail.com.