August 10, 2009

Senator Feinstein Answers the Mail

I mentioned a while back that the ACLU, famed for their championing of the Blacklisted and other undesirables, urged me to write to President Obama about the "indefinite detention" policy under consideration by his Administration, whereby detainees who cannot be convicted (because there is either no evidence they've done anything illegal or the evidence does not amount to a prima facie case) can nevertheless be held forever because they might be a problem in the future. Prez O himself did not respond, but I guess the ACLU, always hard at work perserving my and your freedoms, sent copies to my Congresspeople.

Senator Feinstein's computer took the time to respond. My comments in blue.

Dear Mr. Swimmer:

I want to thank you for contacting me to share your concerns about indefinite detention and the U.S. policy for holding suspected terrorists. [Not at all. It was my pleasure.}

President Obama has ordered that the detention facility at Guantánamo Bay, Cuba be closed within a year. [Actually what he said was, "Within a year of taking office." That obviously won't happen.] He has also established task forces to review U.S. interrogation and detention policies and evaluate how individuals currently held at Guantánamo should be handled - whether to prosecute them, transfer them to the custody of other nations, or continue to detain them in other circumstances. [It's actually the "other circumstances" that I was writing about.]

I support the President's efforts and, as Chair of the Senate Select Committee on Intelligence, believe there are sufficient and secure alternatives to holding detainees at Guantánamo. For example, individuals could be tried in civil or military justice systems and held in maximum security and super-max prison facilities. Federal courts are capable of prosecuting individuals who have violated U.S. criminal laws and have successfully handled international terrorism prosecutions in the past. The President has also indicated that a fair and reformed military commission system, consistent with due process laws, may allow the U.S. to prosecute individuals who have violated the laws of war. [Every successful terrorist prosecution has been conducted in open federal district court, from the Blind Sheikh to Timothy McVeigh to the Shoe Bomber to Ramzi Yousef to Zacarias Moussaoui. Why do we need a parallel kangaroo system? To convince Dick Cheney we're tough? If you're concerned about terrorists "in our midst," do you want to take a look at the twelve million illegal aliens in the country and see if any of them pose a problem? They're "in our midst" and we have no idea who they are. Otherwise, it seems kind of like scaremongering to impress the Right Wing.)

The Administration has signaled that the U.S. may consider prolonged detention as an option for detainees who are determined to be too dangerous to release. According to the Administration, any such system would be required to have Congressional authorization and would include periodic reviews to evaluate the national security threat posed by detained individuals. [Okay, see - that's sort of the problem. You cite as authority, "According to the Administration" and "Congressional authorization." What I was actually writing about was the United States Constitution, and specifically the Due Process Clause. “It was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.” Murray vs. Hoboken Land (1855), U.S. Supreme Court. And while I'm sure you need no reminding, what the Due Process Clause actually demands is that no person be deprived of life, liberty or property without a judgment following a fair hearing before a neutral judge on the basis of evidence introduced according to the fair procedures. The Founders adopted the Fifth Amendment's Due Process Clause from Magna Carta (1215) and King John's edict to the same effect. Also, you may have noticed that since the Supreme Court handed down the Boumediene case and allowed Guantanamo inmates the opportunity of habeas corpus (which your Senate unconstitutionally wrote out of existence in the Military Commissions Act), 28 out of the 33 inmates who have brought peititions have been exonerated by the courts, and many of the judges ruling on the habeas petitions have been conservative, even Bush-appointed judges. Which gives you an idea of how pathetically weak the cases are against these detainees. If the same percentage applies against those held forever without a case the feds can prove, then about 85% of them will be innocent people locked up forever in a cage waiting for a "review" to set them free.]

I am following this review process closely, and I am committed to working with the President to carefully evaluate these alternatives and what changes in law may be needed. Please do not hesitate to be in touch with my Washington, D.C. office at (202) 224-3841 if you have any questions or additional input. Warm regards. [Right back atcha, but if you're going to change the law and operate under the Constitution, then I think you need to float a Constitutional amendment repealing the Fifth and Fourteenth Amendments.]

Sincerely yours,

Dianne Feinstein
United States Senator

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