The New York Times reminds President Obama that his recent surveillance power-grab breaks campaign promises.
From NYT:
It is just a technical matter, the Obama administration says: We just need to make a slight change in a law to make clear that we have the right to see the names of anyone’s e-mail correspondents and their Web browsing history without the messy complication of asking a judge for permission.
It is far more than a technical change. The administration’s request, reported Thursday in The Washington Post, is an unnecessary and disappointing step backward toward more intrusive surveillance from a president who promised something very different during the 2008 campaign.
In a 1993 update to the Electronic Communications Privacy Act, Congress said that Internet service providers have to turn over to the F.B.I., on request, “electronic communication transactional records.” The government says this includes the e-mail records of their subscribers, specifically the addresses to which e-mail messages were sent, and the times and dates. (The content of the messages can remain private.) It may also include Web browsing records. To get this information, the F.B.I. simply has to ask for it in the form of a national security letter, which is an administrative request that does not require a judge’s signature.
But there was an inconsistency in the writing of the 1993 law. One section said that Internet providers had to turn over this information, but the next section, which specified what the F.B.I. could request, left out electronic communication records. In 2008, the Justice Department’s Office of Legal Counsel issued an opinion saying this discrepancy meant the F.B.I. could no longer ask for the information. Many Internet providers stopped turning it over. Now the Obama administration has asked Congress to make clear that the F.B.I. can ask for it.
These national security letters are the same vehicles that the Bush administration used after the Sept. 11, 2001, attacks to demand that libraries turn over the names of books that people had checked out. The F.B.I. used these letters hundreds of thousands of times to demand records of phone calls and other communications, and the Pentagon used them to get records from banks and consumer credit agencies. Internal investigations of both agencies found widespread misuse of the power, and little oversight into how it was wielded.
President Obama campaigned for office on an explicit promise to rein in these abuses. “There is no reason we cannot fight terrorism while maintaining our civil liberties,” his campaign wrote in a 2008 position paper. “As president, Barack Obama would revisit the Patriot Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision.”
Where is the “robust oversight” that voters were promised? Earlier this year, the administration successfully pushed for crucial provisions of the Patriot Act to be renewed for another year without changing a word. Voters had every right to expect the president would roll back authority that had been clearly abused, like national security letters. But instead of implementing reasonable civil liberties protections, like taking requests for e-mail surveillance before a judge, the administration is proposing changes to the law that would allow huge numbers of new electronic communications to be examined with no judicial oversight.
Democrats in Congress can remind Mr. Obama of his campaign promises by refusing this request.
Read the article...
--------------------
That's not "change we can believe in."
Friday, July 30, 2010
“Extreme and Unlawful” Bush-Era Policies Becoming the “New Normal” Under Obama
The ACLU produces an 18-month review of the Obama administration policies.
Quoting from the ALCU:
Indeed, on a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration. There is a real danger, in other words, that the Obama administration will preside over the creation of a "new normal."
"Establishing a New Normal" is available online at: www.aclu.org/national-security/establishing-new-normal
--------------------
That's not "change we can believe in."
Quoting from the ALCU:
Indeed, on a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration. There is a real danger, in other words, that the Obama administration will preside over the creation of a "new normal."
"Establishing a New Normal" is available online at: www.aclu.org/national-security/establishing-new-normal
--------------------
That's not "change we can believe in."
Obama's Surveillance Power Grab
The Obama administration wants to "clarify" FBI power to get online records without warrants -- and vastly expand it.
From: American Prospect
July 29, 2010
They're calling it a tweak -- a "technical clarification" -- but make no mistake: The Obama administration and the FBI's demand that Congress approve a huge expansion of their authority to obtain the sensitive Internet records of American citizens without a judge's approval is a brazen attack on civil liberties.
At issue is the scope of the Federal Bureau of Investigation's power to obtain information from "electronic communications service providers" using national security letters (NLS), which compel private companies to allow government access to communication records without a court order. The administration wants to add four words -- "electronic communication transactional records" -- to Section 2709 of the Electronic Communications Privacy Act, which spells out the types of communications data that can be obtained with an NSL. Yet those four little words would make a huge difference, potentially allowing investigators to draw detailed road maps of the online activity of citizens not even suspected of any connection to terrorism.
In their original form, NSLs were extremely narrow tools designed to allow federal investigators to obtain very basic telephone records (name, address, length of service, calls placed and received) that could be linked by "specific and articulable facts" to persons suspected of being terrorists or foreign spies. In 1993, Congress amended the statute to clarify that NSLs could be issued to electronic information service providers as well as traditional phone companies. But wary of the potential for misuse of what the House Judiciary Committee called this "extraordinary device" in a world of rapidly changing technology, Congress placed tight limits on the types of records that could be obtained, making clear that "new applications" of NSLs would be "disfavored."
The administration is presenting this change as a mere clarification meant to resolve legal ambiguity -- as though Congress had simply misplaced a semicolon. Yet the Bush-era Office of Legal Counsel already rejected that argument in a 2008 opinion, concluding that the FBI had for years misread the "straightforward" language of the statute. And clarity is certainly needed, as it is hard to know just what falls under "categories of information parallel to subscriber information and toll billing records." The standard reference for lawyers in this sphere, David Kris' National Security Investigations and Prosecutions, simply notes that the scope of NSLs as applied to online activity is unclear. Even the Justice Department seems uncertain. In a 2001 response to congressional inquiries about the effect of the newly enacted PATRIOT Act, the Department Of Justice told Congress that "reasonable minds may differ" as to where the line should be drawn between addressing information equivalent to toll billing records and "content" requiring a search warrant.
Congress would be wise to specify in greater detail just what are the online equivalents of "toll billing records." But a blanket power to demand "transactional information" without a court order would plainly expose a vast range of far more detailed and sensitive information than those old toll records ever provided.
Consider that the definition of "electronic communications service providers" doesn't just include ISPs and phone companies like Verizon or Comcast. It covers a huge range of online services, from search engines and Webmail hosts like Google, to social-networking and dating sites like Facebook and Match.com to news and activism sites like RedState and Daily Kos to online vendors like Amazon and Ebay, and possibly even cafes like Starbucks that provide WiFi access to customers. And "transactional records" potentially covers a far broader range of data than logs of e-mail addresses or websites visited, arguably extending to highly granular records of the data packets sent and received by individual users.
As the Electronic Frontier Foundation has argued, such broad authority would not only raise enormous privacy concerns but have profound implications for First Amendment speech and association interests. Consider, for instance, the implications of a request for logs revealing every visitor to a political site such as Indymedia. The constitutionally protected right to anonymous speech would be gutted for all but the most technically savvy users if chat-forum participants and blog authors could be identified at the discretion of the FBI, without the involvement of a judge.
The right of "expressive association," which a unanimous Supreme Court similarly found to enjoy constitutional protection, would be equally imperiled. Though, the Court previously held that the government could not force politically controversial groups like the NAACP to reveal their membership rosters without judicial process. But as legal scholar Katherine Strandburg has argued, data-mining technology now holds out the temptation that just such patterns of "expressive association" can be revealed by sophisticated analysis of communications patterns and social-network ties -- and perhaps even patterns of physical movement, as could be inferred from records of location-sensitive mobile devices. And when the goal is to detect the patterns of previously unidentified terrorists, such analysis requires vacuuming up the records of huge numbers of innocent persons, more or less by definition.
Moreover, the distinction between "content" and merely "transactional" information is not nearly as sharp as might be supposed. Certain communications protocols, for instance, transmit each keystroke a user makes in real time as a separate data "packet." Given the known regularities of the English language, standard keyboards, and human hands, it is theoretically possible to infer the content of a communication from a sufficiently precise record of packet transmission timing. While such an attack would probably be infeasible given current technologies and record-keeping practices, the legal change proposed by the FBI would not be limited to present technologies or practices.
More practically, consider records of keyword-sensitive targeted advertising delivered to users of Webmail services like Gmail, which could indirectly hint at the contents of the e-mail that triggered a specific ad. Or again, consider downloaded movies. Under the Video Privacy Protection Act of 1988, records of a customer's video-rental history are private and protected by law. But even if subscriber viewing histories using services like iTunes or Netflix were considered out of bounds, that history could be reconstructed from transaction logs showing the precise size of a user download. The examples are hypothetical -- what matters is the more general point: An abstract distinction between metadata and "content" gives us no way of predicting the extent of highly intimate information that might be extracted as technology changes and the analytic tools of investigators become more sophisticated.
We increasingly live online. We flirt, shop, read, speak out, and organize in a virtual space where nearly every action leaves a digital trace -- and where those breadcrumb bits often track us through the physical world as well. If the Obama administration gets its way, an agency that has already proved itself utterly unable to respect the limits of its authority will have discretion to map our digital lives in potentially astonishing detail, with no judge looking over their shoulders. That the administration and the FBI would seek such power under the guise of a "technical clarification" is proof enough that they cannot be trusted with it.
Read more...
--------------------
That's not "change we can believe in."
From: American Prospect
July 29, 2010
They're calling it a tweak -- a "technical clarification" -- but make no mistake: The Obama administration and the FBI's demand that Congress approve a huge expansion of their authority to obtain the sensitive Internet records of American citizens without a judge's approval is a brazen attack on civil liberties.
At issue is the scope of the Federal Bureau of Investigation's power to obtain information from "electronic communications service providers" using national security letters (NLS), which compel private companies to allow government access to communication records without a court order. The administration wants to add four words -- "electronic communication transactional records" -- to Section 2709 of the Electronic Communications Privacy Act, which spells out the types of communications data that can be obtained with an NSL. Yet those four little words would make a huge difference, potentially allowing investigators to draw detailed road maps of the online activity of citizens not even suspected of any connection to terrorism.
In their original form, NSLs were extremely narrow tools designed to allow federal investigators to obtain very basic telephone records (name, address, length of service, calls placed and received) that could be linked by "specific and articulable facts" to persons suspected of being terrorists or foreign spies. In 1993, Congress amended the statute to clarify that NSLs could be issued to electronic information service providers as well as traditional phone companies. But wary of the potential for misuse of what the House Judiciary Committee called this "extraordinary device" in a world of rapidly changing technology, Congress placed tight limits on the types of records that could be obtained, making clear that "new applications" of NSLs would be "disfavored."
The administration is presenting this change as a mere clarification meant to resolve legal ambiguity -- as though Congress had simply misplaced a semicolon. Yet the Bush-era Office of Legal Counsel already rejected that argument in a 2008 opinion, concluding that the FBI had for years misread the "straightforward" language of the statute. And clarity is certainly needed, as it is hard to know just what falls under "categories of information parallel to subscriber information and toll billing records." The standard reference for lawyers in this sphere, David Kris' National Security Investigations and Prosecutions, simply notes that the scope of NSLs as applied to online activity is unclear. Even the Justice Department seems uncertain. In a 2001 response to congressional inquiries about the effect of the newly enacted PATRIOT Act, the Department Of Justice told Congress that "reasonable minds may differ" as to where the line should be drawn between addressing information equivalent to toll billing records and "content" requiring a search warrant.
Congress would be wise to specify in greater detail just what are the online equivalents of "toll billing records." But a blanket power to demand "transactional information" without a court order would plainly expose a vast range of far more detailed and sensitive information than those old toll records ever provided.
Consider that the definition of "electronic communications service providers" doesn't just include ISPs and phone companies like Verizon or Comcast. It covers a huge range of online services, from search engines and Webmail hosts like Google, to social-networking and dating sites like Facebook and Match.com to news and activism sites like RedState and Daily Kos to online vendors like Amazon and Ebay, and possibly even cafes like Starbucks that provide WiFi access to customers. And "transactional records" potentially covers a far broader range of data than logs of e-mail addresses or websites visited, arguably extending to highly granular records of the data packets sent and received by individual users.
As the Electronic Frontier Foundation has argued, such broad authority would not only raise enormous privacy concerns but have profound implications for First Amendment speech and association interests. Consider, for instance, the implications of a request for logs revealing every visitor to a political site such as Indymedia. The constitutionally protected right to anonymous speech would be gutted for all but the most technically savvy users if chat-forum participants and blog authors could be identified at the discretion of the FBI, without the involvement of a judge.
The right of "expressive association," which a unanimous Supreme Court similarly found to enjoy constitutional protection, would be equally imperiled. Though, the Court previously held that the government could not force politically controversial groups like the NAACP to reveal their membership rosters without judicial process. But as legal scholar Katherine Strandburg has argued, data-mining technology now holds out the temptation that just such patterns of "expressive association" can be revealed by sophisticated analysis of communications patterns and social-network ties -- and perhaps even patterns of physical movement, as could be inferred from records of location-sensitive mobile devices. And when the goal is to detect the patterns of previously unidentified terrorists, such analysis requires vacuuming up the records of huge numbers of innocent persons, more or less by definition.
Moreover, the distinction between "content" and merely "transactional" information is not nearly as sharp as might be supposed. Certain communications protocols, for instance, transmit each keystroke a user makes in real time as a separate data "packet." Given the known regularities of the English language, standard keyboards, and human hands, it is theoretically possible to infer the content of a communication from a sufficiently precise record of packet transmission timing. While such an attack would probably be infeasible given current technologies and record-keeping practices, the legal change proposed by the FBI would not be limited to present technologies or practices.
More practically, consider records of keyword-sensitive targeted advertising delivered to users of Webmail services like Gmail, which could indirectly hint at the contents of the e-mail that triggered a specific ad. Or again, consider downloaded movies. Under the Video Privacy Protection Act of 1988, records of a customer's video-rental history are private and protected by law. But even if subscriber viewing histories using services like iTunes or Netflix were considered out of bounds, that history could be reconstructed from transaction logs showing the precise size of a user download. The examples are hypothetical -- what matters is the more general point: An abstract distinction between metadata and "content" gives us no way of predicting the extent of highly intimate information that might be extracted as technology changes and the analytic tools of investigators become more sophisticated.
We increasingly live online. We flirt, shop, read, speak out, and organize in a virtual space where nearly every action leaves a digital trace -- and where those breadcrumb bits often track us through the physical world as well. If the Obama administration gets its way, an agency that has already proved itself utterly unable to respect the limits of its authority will have discretion to map our digital lives in potentially astonishing detail, with no judge looking over their shoulders. That the administration and the FBI would seek such power under the guise of a "technical clarification" is proof enough that they cannot be trusted with it.
Read more...
--------------------
That's not "change we can believe in."
Thursday, July 29, 2010
White House proposal would ease FBI access to records of Internet activity
From Washington Post
Thursday, July 29, 2010
The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
...
Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."
...
To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is "incredibly bold, given the amount of electronic data the government is already getting," said Michelle Richardson, American Civil Liberties Union legislative counsel.
Read more...
--------------------
That's not "change we can believe in."
Thursday, July 29, 2010
The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
...
Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."
...
To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is "incredibly bold, given the amount of electronic data the government is already getting," said Michelle Richardson, American Civil Liberties Union legislative counsel.
Read more...
--------------------
That's not "change we can believe in."
Tuesday, July 6, 2010
Military Spying and Torture Continues Under Obama: CIFA’s Nine (Corrupt) Lives
From Dissident Voice:
Despite promises to the contrary, the Obama administration has consolidated, even expanded privacy- and civil liberties killing programs launched by the Bush government.
From warrantless spying and driftnet surveillance to the indefinite detention and torture of foreign suspects held in U.S. gulags, and from the murderous drone wars in Pakistan to threats to assassinate American citizens merely on the suspicion they might be terrorists, 18 months into Obama’s new “change” order, facts on the ground paint a grim picture indeed.
As egregious as these central facts are in demolishing the veracity of the President’s long-forgotten campaign pledges, when it comes to enlisting the services of defense and security corporations for waging America’s bogus “War On Terror 2.0.1,” the current regime delivers!
Read more...
--------------------
That's not "change we can believe in."
Despite promises to the contrary, the Obama administration has consolidated, even expanded privacy- and civil liberties killing programs launched by the Bush government.
From warrantless spying and driftnet surveillance to the indefinite detention and torture of foreign suspects held in U.S. gulags, and from the murderous drone wars in Pakistan to threats to assassinate American citizens merely on the suspicion they might be terrorists, 18 months into Obama’s new “change” order, facts on the ground paint a grim picture indeed.
As egregious as these central facts are in demolishing the veracity of the President’s long-forgotten campaign pledges, when it comes to enlisting the services of defense and security corporations for waging America’s bogus “War On Terror 2.0.1,” the current regime delivers!
Read more...
--------------------
That's not "change we can believe in."
Friday, July 2, 2010
Obama: Life Imprisonment Without Trial
Excellent article from The New American. Happy 4th of July everybody :(
==================
Obama: Life Imprisonment Without Trial
by Thomas R. Eddlem
President Obama's Guantanamo Review Task Force has “unanimously” concluded that 48 detainees at Guantanamo should be detained indefinitely — in essence, a life sentence — without trial, including lifetime detention for some detainees who, the commission concluded, hadn't committed any crimes that “constitute a chargeable offense in either a federal court or military commission.” The Washington Post revealed May 28 that the Task Force decided to repatriate the majority of the 240 detainees they investigated, while other detainees should be tried in criminal court or by “military commissions” the Obama administration would reconstitute.
Most Guantanamo detainees have already languished in prison for eight years without trial, and the commission — consisting of officials from the intelligence, military, Defense, Homeland Security, State and Justice departments — concluded the following of the 48 detainees who would remain in prison without trial indefinitely:
Generally these detainees cannot be prosecuted because either there is presently insufficient admissible evidence to establish the detainee's guilt beyond a reasonable doubt in either a federal court or military commission, or the detainee's conduct does not constitute a chargeable offense in either a federal court or military commission.
In other words, the Obama administration officials think the detainees might have committed a crime but can't be sure, or they are sure the detainees didn't commit a crime and want to keep them in prison for life anyway.
The untrammeled power of government to throw people into prison without a trial by jury was a key grievance the Founding Fathers cited in their reason for separating from Britain, charging the British with “depriving us in many cases, of the benefit of trial by jury” in the Declaration of Independence. Therefore, the Founding Fathers sought to require both due process of law for all those arrested in the Fifth Amendment to the U.S. Constitution:
No person shall be ... be deprived of life, liberty, or property, without due process of law.
And they also guaranteed an unqualified right to trial by jury in the Sixth Amendment to the U.S. Constitution:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Of course, the 48 designated for life imprisonment without trial is only the beginning. The U.S. government holds hundreds of other detainees at other prisons around the world, such as those at Bagram Air Force Base in Afghanistan (which has more detainees than Guantanamo). The “unanimous” but blatantly unconstitutional precedent set by this ruling could mean that these other detainees — or anyone else the Obama administration detains — could also receive life imprisonment without trial under the Obama policy.
The Task Force concluded that 126 detainees should be approved for repatriation to their home countries (of which 44 have already been released), 44 should be prosecuted (prosecution of six in federal court and six more in “military tribunals” has already been announced), and 48 are designated for indefinite detention without trial. An additional 30 Yemeni detainees were deemed to be eligible for repatriation to their home country when the Yemeni government stabilizes.
The trial by “military commissions” would also be a blatant violation of the Sixth Amendment's requirement of trial by jury of peers as well as its requirement that the “district shall have been previously ascertained by law.” In the case of the military tribunals, the district will be created eight years after the offense and specifically to get convictions in alleged crimes that occurred years earlier.
The Task Force reviewed the cases of the 240 who remained in the Cuban military base in early 2009 when President Obama ordered the review. Of the 779 people who were detained at Guantanamo since 2002, not one has yet been given a criminal trial under either the ordinary criminal (civilian) process or the Uniform Code of Military Justice reserved to members of armed forces. Two-thirds of the detainees (530 of the 779) were released or repatriated to their home countries. Several detainees were convicted under unconstitutional “military commissions,” first by the Bush administration and later by Congress' Military Commissions Act of 2006, but the Supreme Court ruled the military commissions unconstitutional in successive cases, ending in the famous Boumediene case in 2008.
The Obama administration's justification for holding the 48 detainees for life without a trial is the 2001 Authorization of the Use of Military Force (AUMF) passed by Congress. In essence, the Obama administration claims that a mere law passed by Congress overcomes the explicit and unequivocal wording of the Constitution's Bill of Rights. The Task Force rationalized the decision for indefinite detention this way:
As the Supreme Court has held, inherent within the authorization of the AUMF to “use all necessary and appropriate force” is the power to detain any individuals who fall within the scope of the statute. As the Supreme Court observed, “by universal agreement and practice,” the power to wage war necessarily includes the authority to capture and detain combatants in order to prevent them from “returning to the field of battle and taking up arms once again.”
This determination by the Guantanamo Review Task Force represents the final victory of the policies of George W. Bush in the Obama administration, and is in many respects constitutionally worse than the Bush policy. The Bush administration talked about holding people indefinitely, but there was always the hope that trials or release would eventually be obtained. The Guantanamo Review Task Force makes the Bush policy explicit, bipartisan, and permanent. It contitutes the first case in American history where the U.S. government has explicitly concluded that it has the power to lock up anyone for life without ever holding a trial of any kind.
There is no greater mark of tyranny than a government that can throw a person into prison for life at the whim of an executive without any sort of impartial review. But the Obama administration makes this arbitrary power worse when its Guantanamo Review Task Force admits that some of those it is throwing into prison for life have not committed a crime. That's precisely what the review said when it admitted that some detainees being selected for lifetime detention without a trial had not committed anything that would “constitute a chargeable offense in either a federal court or military commission.”
Many should now be asking: If this decision is allowed to stand, can we still call America the “land of the free”? And if freedom-loving Americans don't work to return their government to the Constitution, are we still the “home of the brave”?
--------------------
That's not "change we can believe in."
==================
Obama: Life Imprisonment Without Trial
by Thomas R. Eddlem
President Obama's Guantanamo Review Task Force has “unanimously” concluded that 48 detainees at Guantanamo should be detained indefinitely — in essence, a life sentence — without trial, including lifetime detention for some detainees who, the commission concluded, hadn't committed any crimes that “constitute a chargeable offense in either a federal court or military commission.” The Washington Post revealed May 28 that the Task Force decided to repatriate the majority of the 240 detainees they investigated, while other detainees should be tried in criminal court or by “military commissions” the Obama administration would reconstitute.Most Guantanamo detainees have already languished in prison for eight years without trial, and the commission — consisting of officials from the intelligence, military, Defense, Homeland Security, State and Justice departments — concluded the following of the 48 detainees who would remain in prison without trial indefinitely:
Generally these detainees cannot be prosecuted because either there is presently insufficient admissible evidence to establish the detainee's guilt beyond a reasonable doubt in either a federal court or military commission, or the detainee's conduct does not constitute a chargeable offense in either a federal court or military commission.
In other words, the Obama administration officials think the detainees might have committed a crime but can't be sure, or they are sure the detainees didn't commit a crime and want to keep them in prison for life anyway.
The untrammeled power of government to throw people into prison without a trial by jury was a key grievance the Founding Fathers cited in their reason for separating from Britain, charging the British with “depriving us in many cases, of the benefit of trial by jury” in the Declaration of Independence. Therefore, the Founding Fathers sought to require both due process of law for all those arrested in the Fifth Amendment to the U.S. Constitution:
No person shall be ... be deprived of life, liberty, or property, without due process of law.
And they also guaranteed an unqualified right to trial by jury in the Sixth Amendment to the U.S. Constitution:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Of course, the 48 designated for life imprisonment without trial is only the beginning. The U.S. government holds hundreds of other detainees at other prisons around the world, such as those at Bagram Air Force Base in Afghanistan (which has more detainees than Guantanamo). The “unanimous” but blatantly unconstitutional precedent set by this ruling could mean that these other detainees — or anyone else the Obama administration detains — could also receive life imprisonment without trial under the Obama policy.
The Task Force concluded that 126 detainees should be approved for repatriation to their home countries (of which 44 have already been released), 44 should be prosecuted (prosecution of six in federal court and six more in “military tribunals” has already been announced), and 48 are designated for indefinite detention without trial. An additional 30 Yemeni detainees were deemed to be eligible for repatriation to their home country when the Yemeni government stabilizes.
The trial by “military commissions” would also be a blatant violation of the Sixth Amendment's requirement of trial by jury of peers as well as its requirement that the “district shall have been previously ascertained by law.” In the case of the military tribunals, the district will be created eight years after the offense and specifically to get convictions in alleged crimes that occurred years earlier.
The Task Force reviewed the cases of the 240 who remained in the Cuban military base in early 2009 when President Obama ordered the review. Of the 779 people who were detained at Guantanamo since 2002, not one has yet been given a criminal trial under either the ordinary criminal (civilian) process or the Uniform Code of Military Justice reserved to members of armed forces. Two-thirds of the detainees (530 of the 779) were released or repatriated to their home countries. Several detainees were convicted under unconstitutional “military commissions,” first by the Bush administration and later by Congress' Military Commissions Act of 2006, but the Supreme Court ruled the military commissions unconstitutional in successive cases, ending in the famous Boumediene case in 2008.
The Obama administration's justification for holding the 48 detainees for life without a trial is the 2001 Authorization of the Use of Military Force (AUMF) passed by Congress. In essence, the Obama administration claims that a mere law passed by Congress overcomes the explicit and unequivocal wording of the Constitution's Bill of Rights. The Task Force rationalized the decision for indefinite detention this way:
As the Supreme Court has held, inherent within the authorization of the AUMF to “use all necessary and appropriate force” is the power to detain any individuals who fall within the scope of the statute. As the Supreme Court observed, “by universal agreement and practice,” the power to wage war necessarily includes the authority to capture and detain combatants in order to prevent them from “returning to the field of battle and taking up arms once again.”
This determination by the Guantanamo Review Task Force represents the final victory of the policies of George W. Bush in the Obama administration, and is in many respects constitutionally worse than the Bush policy. The Bush administration talked about holding people indefinitely, but there was always the hope that trials or release would eventually be obtained. The Guantanamo Review Task Force makes the Bush policy explicit, bipartisan, and permanent. It contitutes the first case in American history where the U.S. government has explicitly concluded that it has the power to lock up anyone for life without ever holding a trial of any kind.
There is no greater mark of tyranny than a government that can throw a person into prison for life at the whim of an executive without any sort of impartial review. But the Obama administration makes this arbitrary power worse when its Guantanamo Review Task Force admits that some of those it is throwing into prison for life have not committed a crime. That's precisely what the review said when it admitted that some detainees being selected for lifetime detention without a trial had not committed anything that would “constitute a chargeable offense in either a federal court or military commission.”
Many should now be asking: If this decision is allowed to stand, can we still call America the “land of the free”? And if freedom-loving Americans don't work to return their government to the Constitution, are we still the “home of the brave”?
--------------------
That's not "change we can believe in."
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