Obama Objects to Homeland Security Funding Bill's Detainee Restrictions

By Jeralyn, Section Terror Detainees
Posted on Wed Jun 01, 2011 at 10:40:08 AM EST
Tags: (all tags)

Share This: Digg!

The White House released this statement yesterday about its position on the House bill for Homeland Security funding. (H.R. 2017.)It strongly objects to the provision limiting funds for the transfer of detainees, calling the restrictions "a dangerous and extraordinary challenge to critical Executive branch authority."

The Administration also has a number of serious constitutional concerns. The Administration strongly objects to the provisions of section 537 that limit the use of funds to transfer detainees and otherwise restrict detainee transfers.

[More...]

Although the Administration opposes the release of detainees within the United States, section 537 is a dangerous and extraordinary challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests. It unnecessarily constrains the Nation's counterterrorism efforts and would undermine national security, particularly where Federal courts are the best – or even the only – option for incapacitating dangerous terrorists. For decades, presidents of both political parties have leveraged the flexibility and strength of this country’s Federal courts to incapacitate dangerous terrorists and gather critical intelligence. The prosecution of terrorists in Federal court is an essential element of counterterrorism efforts – a powerful tool that must remain an available option.

The Administration strongly opposes any inclusion of ideological and political provisions that are beyond the scope of funding legislation. Should the Congress continue to include language that is not relevant to a funding debate, the Administration will oppose the bill.

Obama stops short of promising an express veto, but is he making a veiled veto threat? Hard to tell.

< Sentencing Commission Hearing on Retroactivity of Crack Cocaine Reduction | Global Commission Report: War on Drugs A Failure >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

Obama Objects to Homeland Security Funding Bill's Detainee Restrictions | 24 comments (24 topical)

Readers Must Login or Create an Account to Comment

While I am encouraged by the objection, (5.00 / 1) (#6)
by Anne on Wed Jun 01, 2011 at 12:33:21 PM EST

which is wholly appropriate, I also see that the first thing the statement says is that the administration supports the bill. Okay. Encouragement is followed by the realization that I think that's all you need to know about whether Obama will veto the bill if the final legislation contains that language: he won't, because that would be making the perfect the enemy of the good, or throwing the baby out with the bathwater, or some other bumper-sticker phrase that will be accompanied by the by-now expected shoulder shrug.

And I'm pretty sure that if it stays in, Obama won't be able to extract any meaningful concessions in exchange. I hope he proves me wrong, both about whether he will veto the bill, or if he doesn't veto, that he will actually get something for it.

Honestly, some days, I can't believe Obama's only been president for two and a half years, because it seems like it's been forever already - and not in a good way.

Various countries (none / 0) (#1)
by Edger on Wed Jun 01, 2011 at 11:01:25 AM EST

have offered to take Guantanamo prisoners, and while the US government has apparently offered, according to Wikileaks released diplomatic cables, to pay Spain $85,000 per prisoner to take them, Spain declined.

I'm not aware the the other countries that offered to take them requested money for doing so, which would appear to mean that they could have been transferred without violating Section 527 of H.R. 2017?

: Haven't they all? (none / 0) (#24)
by Nemi on Thu Jun 02, 2011 at 07:01:10 AM EST

Requested money that is ... or some such?
Guantanamo inmates traded for money and Obama handshakes:
The Bulgarian interior ministry, for instance, expressed willingness to accept two men, on condition that the US got rid of visa requirements for Bulgarian tourists and businessmen and helped with relocation expenses.
Mr Fried proposed "a symbolic amount in the neighbourhood of $50,000 - $80,000 per detainee."
Similar amounts were offered to other countries as well. Mr Fried told politicians in the Maldives, an archipelago in the Indian Ocean, that other states had received $25,000 to $85,000 per detainee to cover "temporary living expenses and other costs." The Maldives could expect something toward the upper end of the range, he said.

Prime the Flux Capicitor... (none / 0) (#2)
by kdog on Wed Jun 01, 2011 at 11:51:29 AM EST

I've gotta hear what Obama circa 2007 has to say about this...he's not gonna stand for it.

Hasn't he "moved forward"? (none / 0) (#3)
by Edger on Wed Jun 01, 2011 at 12:08:10 PM EST

If this is forward... (none / 0) (#4)
by kdog on Wed Jun 01, 2011 at 12:16:55 PM EST

we should try reverse...back this tractor-trailer of human rights abuse up a piece.


: I thought maybe (none / 0) (#9)
by Edger on Wed Jun 01, 2011 at 12:41:17 PM EST

a hard left turn would work? But you make a good point - and that would be reversing his direction...

This is why (none / 0) (#5)
by jbindc on Wed Jun 01, 2011 at 12:22:56 PM EST

Flip statements made during a campaign, such as "I will close Guantanamo within a year" should have raised a red flag to anyone who was paying attention as to the naivete of the speaker. It wasn't going to be easy, especially when one is treading in legal waters where there is no real precedent, and this statement definitely showed Obama had no clue what reality was going to be.

Experience DOES matter.

Here's an interesting summary from the Congressional Research Service in March of this year discussing the main constitutional implications of transferring Gitmo prisoners to US soil.

While many persons currently held at Guantanamo are only being detained as a preventive measure to stop them from returning to battle, the United States has brought or intends to pursue criminal charges against some detainees. Various constitutional provisions, most notably those arising from the Fifth and Sixth Amendments to the U.S. Constitution, apply to defendants throughout the process of criminal prosecutions. Prosecuting Guantanamo detainees inside the United States would raise at least two major legal questions. First, does a detainee's status as an enemy belligerent reduce the degree of constitutional protections to which he is entitled? Secondly, would the choice of judicial forum--that is, civilian court, military commission, or court-martial--affect interpretations of constitutional rights implicated in detainee prosecutions?
As previously discussed, the nature and extent to which the Constitution applies to noncitizens detained at Guantanamo is a matter of continuing legal dispute. Although the Supreme Court held in Boumediene that the constitutional writ of habeas extends to detainees held at Guantanamo, it left open the nature and degree to which other constitutional protections, including those relating to substantive and procedural due process, may also apply. The Boumediene Court noted that the Constitution's application to noncitizens in places like Guantanamo that are located outside the United States turns on "objective factors and practical concerns." The Court has also repeatedly recognized that at least some constitutional protections are "unavailable to aliens outside our geographic borders." The application of constitutional principles to the prosecution of aliens located at Guantanamo remains unsettled.

Not really that hard a question (none / 0) (#7)
by Big Tent Democrat on Wed Jun 01, 2011 at 12:33:31 PM EST

The Insular Cases pretty much have decided this question.

CRS' analysis is quite flawed imo.


It comes to (none / 0) (#10)
by jbindc on Wed Jun 01, 2011 at 01:00:36 PM EST

(I think)

Do individuals who a) are not American citizens, and b) who are accused of committing crimes (or attempting to commit crimes)that have no direct contact with US soil, enjoy the same constitutional protections as actual citizens / residents / those here and/or those who committed crimes here?

I'm not sure how it's crystal clear since thousands of lawyers and courts have been working on these issues for 10 years now and no one has come up with a definitive answer.

And I stand by my statememt - it was naive when Obama made his pronouncement in the first place. Showed he had no idea that this was not a simple "yes/no" issue.


The only cases that have seen the issue (none / 0) (#11)
by Big Tent Democrat on Wed Jun 01, 2011 at 01:08:51 PM EST

have found in favor of constitutional protection (habeas rights). I'm not sure what you mean by "no one has figured it out."

Rasul figured it out.

Again, I refer you to the Insuylar Cases.


I disagree (none / 0) (#12)
by jbindc on Wed Jun 01, 2011 at 01:15:55 PM EST

It's unclear - otherwise we in this country wouldn't be still having this conversation. Gitmo prisoners would have been transferred long ago - depsite what many members of Congress and pundits say on MSNBC or FOX.


What conversation? (none / 0) (#13)
by Big Tent Democrat on Wed Jun 01, 2011 at 01:18:30 PM EST

This post is about the President's objection that the bill violates his Article II powers.

It's not about what rights apply for Gitmo detainees.

But consider the argument CRS is making - there is some doubt, says the CRS, about what rights would apply in a criminal trial held in the US courts for Gitmo detainees. Do you think that is any way true? Really? The CRS analysis is deeply flawed.


The way I read it (none / 0) (#14)
by jbindc on Wed Jun 01, 2011 at 01:34:22 PM EST

The CRS says the rights that apply at US criminal trials, currently don't apply to the detainees, and THAT is the issue with bringing them here. You are granting rights that they don't have, which is why no one knows what to do with them.

This whole thing with Obama threatening a veto is a sideshow. My guess is we will NEVER see trials on US soil for Gitmo detainees.


I'm not granting anything (none / 0) (#15)
by Big Tent Democrat on Wed Jun 01, 2011 at 01:38:36 PM EST

Would that I could.

My point is do you REALLY believe that there would be a criminal trial in the United States that does not honor the recognized Constitutional rights accorded accused defendants?

There is a reason that Republicans have included the no transfer provision in this legislation. Because they know what I know - that the Constitutional protection WOULD be afforded to accused defendants in such criminal trials.

Strangely enough, they seem oblivious to the fact that you could have military trials that abide by the UCMJ and the Geneva Conventions in the US.


No (none / 0) (#16)
by jbindc on Wed Jun 01, 2011 at 03:13:33 PM EST

That's the point - they don't have the rights as of now. Bringing them to US soil would afford them those rights - which is why there is a problem.


There is no US court in Gitmo (none / 0) (#17)
by Big Tent Democrat on Wed Jun 01, 2011 at 03:32:17 PM EST

Not understanding your point.

As long as they are in Gitmo, there will be no criminal prosecutions.

I'm not following you.


Is it possible that what jb is saying is (none / 0) (#18)
by Anne on Wed Jun 01, 2011 at 03:45:27 PM EST

that the restriction is in the bill because the GOP doesn't want to accord detainees any rights they would have if their feet hit US soil?

Obama's objection to the restriction on the use of funds doesn't just pertain to his - or any president's - ability to place detainees in the most appropriate environment for dealing with them, but doesn't he ultimately end up making the argument for according detainees more rights if he had the ability to move them here?

I'd like to think that Obama's objection is two-fold: (1) he wants the flexibility on the venue for detention, and (2) wants those ultimately sent here for the disposition of their detention to have more rights. This doesn't seem like a bad thing to me.

But maybe I'm not understanding either of you; it is hot enough to fry brain cells today, so apologies if I've gotten it wrong!


Thank you Anne (none / 0) (#19)
by jbindc on Wed Jun 01, 2011 at 03:48:39 PM EST

Yes - That's what I'm saying. Not being clear today - must be the heat.


Not following that point either (none / 0) (#20)
by Big Tent Democrat on Wed Jun 01, 2011 at 03:58:30 PM EST

They are detained combatants.

They are POWs.

The rights they would have in the US would remain the ones they have now at Gitmo - habeas and Geneva.

Of course the 4th Amendment rights are not relevant here.

The 6th Amendment right to counsel is guaranteed by Geneva in combatant status review.

These are not detained criminals. These are detained combatants.


Some of them (none / 0) (#21)
by jbindc on Wed Jun 01, 2011 at 04:04:03 PM EST

Could possibly be facing criminal charges - so they aren't ALL "combatants".


: Well (none / 0) (#22)
by Big Tent Democrat on Wed Jun 01, 2011 at 04:18:52 PM EST

to face criminal charges they have to come to the US.

The President is correct in this (none / 0) (#8)
by Big Tent Democrat on Wed Jun 01, 2011 at 12:34:10 PM EST

imo.

: He is correct in objecting to diminishment of (none / 0) (#23)
by oculus on Wed Jun 01, 2011 at 05:25:12 PM EST

Executive branch discretion.
But, what about:

It unnecessarily constrains the Nation's counterterrorism efforts and would undermine national security, particularly where Federal courts are the best - or even the only - option for incapacitating dangerous terrorists
Is this merely balm for Greenwald?