-Submitted by David Drumm (Nal), Guest Blogger
John O. Brennan is Deputy National Security Advisor for Homeland Security and Counterterrorism, and Assistant to the President. In remarks made at the Brennan Center for Justice, NYU School of Law, Brennan presented a forceful public call for the closure of the Guantanamo Bay Detention Center and the use of the federal courts to try some of the detainees there. Key word: some.
Brennan said “Terrorists arrested inside the United States will, as always, be processed exclusively through our criminal justice system.” Note he’s not talking about terrorists captured outside the United States.
Nowhere in his speech is there a reference to the writ of habeas corpus. In Boumediene v. Bush, often ignored, the Supreme Court upheld the constitutional right of Guantanamo detainees to habeas corpus. Instead of addressing Boumediene v. Bush, Brennan reiterates Obama’s position:
Our legal authority to use military commissions to prosecute terrorism suspects is not limited to Guantanamo, and we will not limit it to Guantanamo as a policy matter. We will reserve the right, where appropriate, to prosecute individuals we capture in the future in reformed military commissions.
How can military commissions, within the Executive branch, provide an adequate and effective substitute for the habeas writ? The writ must provide access to the Judiciary in order to preserve the principle of separation-of-powers that is the hallmark of the framer’s vision of our government.
Brennan goes on to say:
Our federal courts are unrivaled when it comes to incapacitating dangerous terrorists.
If that is true, there should be no need for military commissions.
Then Brennan gets to the real reason for the military commissions:
In some cases, there are advantages to military commissions. There is greater flexibility to admit hearsay evidence. Confessions can be introduced in military commissions even if Miranda warnings were not issued, but they have to be reliable and, except in limited circumstances, voluntary.
Brennan claims that confessions obtained via torture are admissible. According to Glenn Greenwald, this is not true: “The current rules governing those military tribunals bar the use of torture-obtained evidence to roughly the same extent as real courts do”. The latest copy of the Manual for Military Commissions, page III-7:
No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment … whether or not under color of law, shall be admissible in a trial by military commission.
When discussing Miranda warnings, Brennan says:
Where our laws provide additional flexibility, we must empower our counterterrorism professionals to leverage it.
The purpose of the Constitution is to restrict the Executive Branch’s “flexibility.”
H/T: Jonathan Hafetz, Dafna Linzer.
11 thoughts on “Brennan Slams Congress for Encroaching on Obama’s Authority”
gbk and Mike S.,
I couldn’t agree more. The government is causing more terrorists by reducing our legal standards. It is not about them, it is about us and our reaction to real terrorism, not boogeyman.
“Its’ proponents consider themselves to be protectors of our country and its’ traditions, but actually have little or no faith in them.”
Exactly so. The hoi polli have rarely been trusted by any government, historical or otherwise, that I can recall. The impetus of any government to sustain itself is detrimental to its own future.
Fear, divide and conquer, or as Mike put it, “present[ing] a ‘bogeyman’ to frighten people” are time honored methods for making the tail wag the dog.
“I believe the danger to our country and to our freedom comes from not being true to the instrumentality’s of our creation.”
I concur wholeheartedly.
This mindset unfortunately dates back very many years in our country. It is a mindset that rather putting faith in our Constitutional and Legal processes, utilizes unconstitutional
acts to deal with perceived “national security” issues. Its’ proponents consider themselves to be protectors of our country and its’ traditions, but actually have little or no faith in them. Sometimes though the actions represent a power hungry need, or personal venality, to present a “bogeyman” to frighten people into supporting these extralegal solutions.
As much as I admire FDR, the Japanese interment was unconscionable, especially with the German-American Bund running rampant on the East Coast. Bush did this with 9/11 and the result has been a complete failure and the inability to recognize the true nature of the enemy. The “Cold War” actually propped up the soviet Union by giving it more power than it had and more respect than it deserved. The death and chaos in Viet Nam was a direct result. I could go on and on, but most here are at least as familiar with these instances as am I.
I believe the danger to our country and to our freedom comes from not being true to the instrumentality’s of our creation.
It is propounded by those who outwardly espouse our institutions
but inwardly don’t believe they can work.
Defense Secretary: Libya Did Not Pose Threat to U.S., Was Not ‘Vital National Interest’ to Intervene
I think we’ve got both problems… 🙁
In re: NIMBY
That’s what happens when you play to people’s irrationally disproportionate fears. You get disproportionately irrational reactions. Any reasonable, even cursory, study of the phenomena of terrorism and your chance of dying because of it reveals that simply flying has a greater chance of killing you. Of course, if you were as politicians aiming for disproportionately irrational reactions in the first place, that’s a different problem all together.
Stimulus and Justice? Why, that’s as hard as walking and chewing gum at the same time.
“Our federal courts are unrivaled when it comes to incapacitating dangerous terrorists.
If that is true, there should be no need for military commissions.”
It is true, and that’s the point. Our criminal court system has successfully indicted and prosecuted terrorists, both foreign and domestic for years. Military tribunals have not been as successful. They are means to not only circumvent our system of justice in affording all a fair trial, but undermines it as well.
I still find no legitimate reason as to why all of a sudden our judicial system is incapable of handling terrorism cases.
‘Some’ is better than ‘none’ (especially since it brings the issue to light and can hopefully be used to get ‘more’…) but I would really like to read an article like this and see ‘all’…
And I put the failure to close Gitmo squarely on the shoulders of the ‘NIMBY’ crowd (especially since this was their obvious intention) – given the political environment they fomented, it’s hardly surprising that President Obama chose to spend his political capital elsewhere (such as the stimulus) rather than stick to his original (correct) position…
We all know that Obama taught constitutional law: but whose constitution? Kasakhstan’s?
And the Deja W years continue on torture….
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