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The Constitution Project vs. Obama’s Indefinite Detention Decision

In reaction to the Obama administration’s Guantanamo Bay task force recommending that about 50 detainees at Guantanamo be indefinitely detained without trial, the Constitution Project, a prominent civil-libertarian advocacy group, released the following statement:

“Even if the Obama administration continues to work to close Guantánamo, by pursuing a policy of indefinite detention without charge, the damaging policies that embody the prison will continue, as will the negative effects to American values, the rule of law, and our nation’s reputation abroad,” said Virginia Sloan, president of the Constitution Project. “The constitutional way to fulfill the president’s commitment to closing Guantánamo is to prosecute suspected terrorists in federal court, and to oppose the use of military commissions and indefinite detention without charge. There is widespread bipartisan support for closing Guantánamo in a way that returns our nation to its constitutional principles, as embodied in Beyond Guantánamo: A Bipartisan Declaration.”

After talking to some knowledgeable individuals, I think I need to revise and extend this post. I may have incorrectly suggested that the SCOTUS ruling Boumediene established a right for detainees to receive a trial, which I didn’t mean to suggest, because it doesn’t: it establishes that detainees can contest their detention by the government, a narrower class. If they lose their habeas hearings, as some have, then they’re out of luck, trial-wise. As of right now, the Supreme Court has not directly and decisively ruled on the question of whether the government has the power to detain people in the war against al-Qaeda indefinitely and without charge. (Not that I’m a lawyer … ) The point I was trying to make in the earlier post was that the vector of court rulings since 2004 has been to erode the government’s power to use the so-called “war on terror” as an all-purpose rationale for all manner of detentions.

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