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No Change From Obama on Indefinite Detention

By Jeralyn

The Obama Administration has blown its first chance to signal change from the Bush Administration in the treatment of detainees.

In a case brought by four detainees at Guantanamo alleging torture (details of Rasul v. Rumsfeld here,) the Obama Justice Department has filed a brief arguing that detainees have no constitutional rights and that, even if they did, the Administration officials are immune from liability

In another Guantanamo case, the Justice Department argues in a brief (pdf)that the U.S. has the right to indefinitely hold detainees. The Attorney General's press release is here.

As a smokescreen, the DOJ doesn't use the word "enemy combatent." No one's buying that by not using the term, Obama's taking a different position from Bush.

[More...]

The ACLU weighs in on the enemy combatant issue:

"It is deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. Once again, the Obama administration has taken a half-step in the right direction.

The Justice Department's filing leaves the door open to modifying the government's position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years."

In the torture case, The Center for Constitutional Rights says:

The Department of Justice, with its first opportunity under the new administration to address the issue of torture and religious abuse, argued that detainees had no constitutional rights and that, even if they had enforceable rights, the defendant officers are immune from liability because the detainees’ right not to be tortured and to practice their religion without abuse was “not clearly established” at the time of their detention.

In addition, with respect to religious rights, the Justice Department’s brief supported the Appeals Court’s earlier holding that Guantanamo detainees are not protected by RFRA both because detainees are not “persons” under the Constitution, and because the statute was not meant to apply to them. Finally, the government argued that the detainees’ case should be dismissed because of “special factors” “involving national security and foreign policy.”

CCR opines:

There is one word that the Department of Justice never uses—torture—but the upshot of the Justice Department’s position is that there is no right of detainees not to be tortured and that officials who order torture should be protected,” said Eric Lewis, lead counsel for the detainees. “We believe that this position is clearly no longer tenable after the Supreme Court’s ruling and that the fundamental rights not to be tortured and to be free to practice one’s religion free of abuse will be vindicated, if not by the D.C. Circuit, then by the Supreme Court.”

[Edited to clarify there are two different cases in which the Obama Administration has filed briefs, one in a torture case and one in a case involving detention.]

Full post as published by TalkLeft on March 14, 2009 (boomark / email).