Feingold Plans Hearing on Obama's Detention Policy

[flpoljunkie]

Feingold Plans Hearing On Obama's Detention Policy

Sen. Russ Feingold plans a hearing in June about President Obama's plan to seek "prolonged detention" without trial for some of the Guantanamo detainees. In a letter to Obama, Feingold writes that while he appreciates Obama's "good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional."

http://politics.theatlantic.com/2009/05/feingold_plans_hearing_on_obamas_detention_policy.php

RUSSELL D. FEINGOLD

May 22, 2009

The President
The White House
1600 Pennsylvania Avenue
Washington, D.C. 20500

Dear Mr. President:

I am writing to convey my appreciation for your speech of May 21 on security and values, but
also to express several concerns, particularly about your intention to design a system for what
you called "prolonged detention."

On many fronts, your speech confirmed your commitment to defending our country while
reversing the previous administration's numerous attacks on the rule of law. I was particularly
pleased by your forceful rejection of torture, an issue on which you have backed up your
campaign rhetoric with sustained action, beginning on your second day in office. I also welcome
your acknowledgment that the state secrets privilege has been overused, as well as your
commitment to reform. As you know, the Senate Judiciary Committee is currently considering
legislation on this matter, which I hope your administration will now support. I also look
forward to briefings on your administration's use ofthe privilege thus far, in keeping with your
commitment to "voluntarily report to Congress when we have invoked the privilege and why."

In addition to these substantive matters, I was encouraged by your stated commitment to working
with the judiciary and Congress as co-equal branches of government on issues of national
security. This respect for our constitutional system stands in strong contrast to the approach of
the previous administration. In light of the principles you have put forth, I look forward to full
and open discussions between your administration and Congress on policy and legal matters. I
also welcome your stated appreciation for congressional oversight and for the need for Congress
to have full access to classified programs and information. As you know, the previous
administration established numerous obstacles to effective oversight and I welcome your
commitment to tearing down what remains of those obstacles.

In the spirit of an open, productive dialogue between your administration and Congress, I wish to
layout my concerns related to the disposition of detainees at Guantanamo Bay. I strongly
supported the decision you made in January to close the detention facility at Guantanamo and
continue to do so. The facility has been used as a recruiting tool by our enemies, and allowing it
to remain open would pose an unacceptable threat to our national security. I look forward to
considering your administration's plan for closing the facility, and I welcome your decision to
bring suspected terrorists, like Ahmed Gailani, to justice.

Among the issues Congress must consider carefully is any resumption of the use of military
commissions. Like you, I voted against the Military Commissions Act of 2006. I agree with you
with regard to that statute's many flaws, but it is not clear to me that those flaws can be fixed, or
that the other options in the current federal criminal justice and courts martial systems for
bringing the detainees to justice are insufficient or unworkable. If Congress is to fully consider
your proposal for military commissions, therefore, it will need access to the same information
your administration is currently reviewing, including detailed, classified information on
individual detainees and the extent to which other options are available.

My primary concern, however, relates to your reference to the possibility of indefinite detention
without trial for certain detainees. While I appreciate your good faith desire to at least enact a
statutory basis for such a regime, any system that permits the government to indefinitely detain
individuals without charge or without a meaningful opportunity to have accusations against them
adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.

While I recognize that your administration inherited detainees who, because of torture, other
forms of coercive interrogations, or other problems related to their detention or the evidence
against them, pose considerable challenges to prosecution, holding them indefinitely without trial
is inconsistent with the respect for the rule of law that the rest of your speech so eloquently
invoked. Indeed, such detention is a hallmark of abusive systems that we have historically
criticized around the world. It is hard to imagine that our country would regard as acceptable a
system in another country where an individual other than a prisoner of war is held indefinitely
without charge or trial.

You have discussed this possibility only in the context of the current detainees at Guantanamo
Bay, yet we must be aware of the precedent that such a system would establish. While the
handling of these detainees by the Bush Administration was particularly egregious, from a legal
as well as human rights perspective, these are unlikely to be the last suspected terrorists captured
by the United States. Once a system of indefinite detention without trial is established, the
temptation to use it in the future would be powerful. And, while your administration may resist
such a temptation, future administrations may not. There is a real risk, then, of establishing
policies and legal precedents that rather than ridding our country of the burden of the detention
facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores
or elsewhere, with disastrous consequences for our national security. Worse, those policies a~d
legal precedents would be effectively enshrined as acceptable in our system of justice, having
been established not by one, largely discredited administration, but by successive administrations
of both parties with greatly contrasting positions on legal and constitutional issues.

I do not doubt your good faith efforts to wrestle with these complex issues, and I am confident
that you would seek to use any new authorities carefully andjudiciously. But, as I know you
appreciate, fundamental changes to our constitutional system cannot be considered in the context
of individual presidents or administrations. Whatever new regimes you and the Congress choose
to enact will likely remain in place long after your administration has ended, to be used, or
abused, by future presidents.

I appreciate your efforts to reach out to Congress on this important issue. In that spirit, I intend
to hold a hearing in the Constitution Subcommittee of the Senate Judiciary Committee in June
and ask that you make a top official or officials from the Department of Justice available to
testify. I recognize that your plans are not yet fully formed, but it is important to begin this
discussion immediately, before you reach a final decision. I will be sending formal invitations in
the coming weeks and look forward to hearing the testimony of your administration.

I thank you for this opportunity to convey my views and look forward to continued collaboration
as we return our country to the rule of law while aggressively targeting al Qaeda and its
affiliates.

Sincerely,

Russell D. Feingold
United States Senator
cc: The Honorable Eric Holder
Attorney General of the United States