Information about RSS

Where is the Change on Indefinite Detention?
by Jacob G. Hornberger

As part of the much-vaunted change that Barack Obama said that he was bringing to America as president, Obama has announced that he is dropping President Bush’s use of the term “enemy combatant” from his lexicon. At the same time, he has announced that he will continue the Bush administration’s post-911 assumption of power to arrest and incarcerate people for the rest of their lives without a trial.

That’s the change we can believe in? Come on!

By the way, the president’s embrace of indefinite detention as part of the “war on terrorism” also goes to show what a sham his recent actions were in the Ali al-Marri case. You’ll recall that al-Marri is a foreigner who was being held indefinitely by the Pentagon as an enemy combatant, after having begun his long legal sojourn as a criminal defendant in federal district court.

Just as al-Marri’s case was reaching the Supreme Court, Obama’s Justice Department announced that al-Marri was being reconverted to criminal-defendant status. The legal maneuvering deprived the Supreme Court of jurisdiction to hear the appeal, which would have provided the Court the opportunity to declare the power to detain people indefinitely in violation of the Constitution.

Obama’s legal maneuvering reminded us that Bush’s Justice Department had done the same thing in the Jose Padilla case. Once Bush had secured a favorable ruling from the Second Circuit Court of Appeals upholding his power to jail Americans indefinitely in military prisons, Padilla appealed to the Supreme Court. Before the Supreme Court could consider the appeal, however, Bush’s people converted Padilla to criminal-defendant status, thereby depriving the Supreme Court of jurisdiction to hear the appeal. That left the Second Circuit decision in the Padilla case intact.

As soon as Obama assumed the presidency, he did the same thing that Bush did. Obama’s supporters, however, argued that his motivations were honorable. Converting al-Marri to criminal-defendant status, they claimed, was not legal maneuvering to deprive the Supreme Court jurisdiction to hear the appeal but instead consistent with Obama’s supposed opposition to the indefinite-detention power assumed by Bush and the Pentagon after 9/11. They even pointed to the Justice Department’s request to have the appellate court decision against al-Marri vacated as proof of such good faith, conveniently ignoring that the same court’s decision in the Padilla case remained fully intact.

But Obama’s actions were all a sham, which has been confirmed by his announcement that he will continue to embrace Bush’s assumption of power to detain people indefinitely without trial.

It’s just another pathetic example of how Democrats and Republicans share the same philosophy and how it’s all just a contest to see who is going to get to wield power. Let’s face it: If John McCain had been elected president instead of Barack Obama, he would be doing the same things that Obama is doing and that Bush was doing — leading America to financial ruin by spending big on grandiose socialist and imperialist programs, making America less safe through the never-ending killing of foreigners, narrowing the scope of people’s freedom in the name of security, and using “crises” to expand power.

Jacob Hornberger is founder and president of The Future of Freedom Foundation, publisher of Your Money or Your Life: Why We Must Abolish the Income Tax by Sheldon Richman. Send him email.