The United States has finally released the last three detainees from the Parwan Detention Center in Afghanistan. “The Defense Department no longer operates detention facilities in Afghanistan nor maintains custody of any detainees,” Pentagon spokesman Lt. Col. Myles Caggins told The Associated Press.
Two of the detainees were transferred to Afghan custody for possible prosecution and a third is being resettled in another country. One of those who might face prosecution is a former Osama bin Laden bodyguard who was subjected to “enhanced interrogation techniques” by the CIA in 2002, including isolation in total darkness, lowering quality of food, cold temperatures, loud music 24 hours a day, stress positions, and shackling and hooding.
This follows the transfer overseas last month of a dozen detainees from the notorious Guantánamo Bay, Cuba, detention center after Barack Obama met with top administration officials and urged that the prison be closed for being unnecessary, expensive (it costs taxpayers more than $440 million annually), and a propaganda tool for the country’s enemies.
Although the Guantánamo prison once held 700 inmates, the prisoner population is down to 136. There are 68 prisoners cleared for transfer, at least five of them scheduled to be moved by the end of the year. Nevertheless, Congress would have to approve the prison’s closure, which is not likely to happen, since it has already prohibited the transfer of any prisoners to the United States. “The release of these detainees raises considerable questions and concerns about the risk to Americans,” wrote House Armed Services Committee Chairman, Rep. Howard “Buck” McKeon (R-Lockheed Martin) to Defense Secretary Chuck Hagel.
During this Christmas season we have been inundated with news stories about U.S. soldiers stationed overseas who are separated from their families. But there is another group of Americans who are separated from their families during the holidays — and not because they are in some other country.
What about the detainees in U.S. prisons?
According to the International Center for Prison Studies at King’s College London, the United States
- has less than 5 percent of the world’s population, but almost a quarter of the world’s prisoners.
- has 2.3 million criminals behind bars, more than any other nation.
- has the highest per capita prison rate, with 751 people in prison or jail for every 100,000 in population.
Americans are locked up for crimes that would rarely produce prison sentences in other countries and are kept incarcerated far longer than prisoners in other nations. The most egregious example of Americans who are unjustly incarcerated is, of course, that of Americans snared by the government’s war on drugs.
According to the FBI’s annual Uniform Crime Report for 2013, the highest number of arrests (1,501,043) was that for drug law violations. That is 13.28 percent of all arrests. Mere possession accounted for 82.3 percent of drug arrests. Almost half (46.2%) of all drug arrests were for marijuana. Mere possession of marijuana accounted for 40.6 percent of all drug arrests.
And according to the Federal Bureau of Prisons, there are currently 98,538 inmates, or 49.9 percent, in federal prison for drug offenses. And according to “Prisoners in 2012: Trends in Admissions and Releases, 1991–2012,” published by the U.S. Department of Justice, 16.6 percent of the state prison population in 2011 was made up of drug offenders and 25.4 percent of the people sentenced to state prison in 2011 were drug offenders.
Yet, no American should be incarcerated in a federal prison for violating federal drug laws because:
- The war on drugs turns vices into crimes.
- The war on drugs is nowhere authorized by the Constitution.
- The war on drugs is a monstrous evil that has ruined more lives than drugs themselves.
- The war on drugs is an illegitimate function of government.
- The war on drugs makes criminals out of otherwise law-abiding Americans.
- The war on drugs violates individual liberty and private property.
- The war on drugs criminalizes peaceful activity.
- The war on drugs is incompatible with a free society.
- The war on drugs has completely failed to prevent or reduce drug use.
- The war on drugs costs far more than any of its supposed benefits.
Short of changing or eliminating federal drug laws, what could be done to release those detained in U.S. federal prisons on drug charges?
The legality of Obama’s recent executive action to suspend enforcement of the nation’s immigration laws against certain categories of those here illegally is in doubt. His action offers a legal reprieve to the undocumented parents of U.S. citizens and permanent residents who’ve resided in the country for at least five years, expands the 2012 Deferred Action for Childhood Arrivals program that allows young immigrants who arrived as children to apply for a deportation deferral, facilitates visas for people who invest in the United States or pursue certain degrees, modifies federal immigrant detention procedures, and adds resources to strengthen border security.
There is, however, another executive action the president could take that — although it would still generate controversy — would be entirely legal and constitutional. Obama could simply exercise his pardon power.
According to Article 2, Section 2, Clause 1 of the Constitution, the president “shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.”
A reprieve is the commutation of a sentence already imposed that does not affect a person’s legal guilt. A pardon completely mitigates the legal effects of a conviction. An amnesty is a general or group pardon.
The scope of the president’s pardon power is quite broad. As explained in the Supreme Court case of Ex parte Garland (1867),
If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity…. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.
According to United States v. Klein (1871), Congress cannot limit the president’s grant of an amnesty or pardon.
In 1795, George Washington pardoned the two men who were convicted in federal court for crimes committed during the Whiskey Rebellion. In 1977, Jimmy Carter granted an amnesty to all Americans who had unlawfully evaded the military draft during the Vietnam War.
Americans unjustly held in federal prisons because they exercised their natural right to grow, manufacture, buy, sell, distribute, use, or “traffick in” some substance the government doesn’t approve had better not pack their bags just yet. According to the Pardon Power blog, Barack Obama is “one of the least merciful presidents in the history of the United States.” He has granted only 1 in 35 pardon applications. His Democratic president predecessors Bill Clinton and Jimmy Carter pardoned, respectively, 1 in 5 and 1 in 3.
No one should ever be detained by police, arrested, tried, fined, or imprisoned for drug crimes. The war on drugs is a war on freedom.