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”?

Photo: AP Images

TrackBack URI for this entry

Comments (9)

Subscribe to this comment's feed

Charles Byrd said:

HMM..... So this is the "Change" liberals "Hoped" for.

May 29, 2010

Once and for all, Lowly rated comment [Show]

Captain Gabe said:

Forgot to properly link. Here it is: http://www.hillsdale.edu/news/...th=03/url]

May 29, 2010

Captain D said:

Just read the Constitution, captain... In response to Captain Gabe, May I urge you to recognize that if we are given inalienable rights by our Creator, and if our Constitution does not grant those rights, but rather recognizes the pre-existing rights, then it is perfectly relevant to apply the protections of the Constitution to all people. You will notice that the Amendments cited do not say "the people" or "citizens." No. Instead, they say, "person." Congress cannot take a way a "person's" life, liberty, or property without due process of law. it is that simple. Bravo to TNA to point this out. And, a final note, captain, when you state that they are unfriendly people, I must ask, based upon what? Don't you understand that these are NOT unfriendly people in the legal sense? If they were, we could charge them. In many cases, we are talking about truly innocent people whose most vile act was merely being in the wrong country at the wrong time. Grow up and respect other people's rights!

May 29, 2010

JJ Suprise said:

The benefit of law! Captain Gabe, Careful, if you are a regular reader of The New American and a person who values the Constitution, YOU are considered a "terrorist" by the very same people who made this sickening decision! Are you prepared to be imprisoned for life when you have not even committed a "chargeable offense"? "I would give the Devil the benefit of Law, to protect myself"! Sir Thomas Moore JJ Suprise Sandy, Utah

May 29, 2010 | url

DontTreadOnMe said:

... I must take issue with Captain D’s specious argument to extend Constitution of the United States to the whole world. I believe that he is confusing the Declaration of Independence with the Constitution. The Constitution, which limits what our government can do to us, states: We the People of the UNITED STATES…not Yemen, not France, not China, not anywhere but here. The Constitution covers “We the People of the United States” period. Yes, they should receive a hearing, a judgment, and a sentence or acquittal. Naturally we look to our own institution for guidance. But, these are special circumstances, they are not citizens of the United States and the Constitution only covers the “People of the United States”. Bringing them to our soil is out of the question. These are not bank robbers. These are people who fight on a side that wants to kill us not just our military, but you also, your children, your parents, your neighbors, your church, your family pet. And they would do so happily, gleefully. Moreover, Captain D, in a “legal” sense, these people are not prisoners of war because they do not fight under a flag of any particular country. That is why they are termed “enemy combatants”. Just as we should not be exporting democracy in neo-conservative style, we should not tell other countries how to live or act. We should protect and defend citizens of the United States in or out of this country. We should NOT extend Constitutional rights to non-U.S. citizens taken as prisoners during war who fight under no flag of any recognized country. We have no right or obligation to do so.

May 30, 2010

Freedom2.0 said:

... Maybe they're scared the "detainees" who committed no crimes will tell the world about the torture they endured.... DOJ sleaze bag John Yoo said it was acceptable to crush a child's testicles in front of their parents to get a confession. Or murder a whole village. So the US regime now murders its own citizens anywhere in the world based on supposed suspicions, without trial or charges (it's now admitted), it imprisons innocent people for life, tortures people into confessing to crimes they never committed using barbarous, vile techniques... it sounds an awful lot like the propaganda against countries like Iraq in the run up to US-led "regime change." And the US actually DOES have WMDs. Caught between a rock and a hard place, it seems to me. Wake up America. They're coming for you next.

May 30, 2010

docellis124 said:

... I posted this on my blog line at BikerorNot.com and tweeted this to FaceBook, MySpace, and LinkedIn. on the comment thread at BikerorNot.com BlueMoon wrote at 5/30/2010 8:37:41 PM "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." ~~~~ Name ONE Guantanamo detainee who was detained at the whim of an executive without any sort of impartial review. Can anyone provide a link or other information to respond to this comment? I am new at this site and wanna back up what Eddlem wrote. Thanks for any help y'all can provide. Doc Ellis 124 docellis124@yahoo.com

May 31, 2010 | url

Las Vegas Lawyer said:

Rights According to criminal rights, accused has rights to have trial whatever the situation is. The right to court proceeding should clearly elaborate to bring no confusion.

June 27, 2010 | url