This article contains of two parts. Also read part 2.

By Daan de Wit
Translated by Ben Kearney

There is a new wind blowing in Washington. The American government once again has a human face. Barack Obama will restore respect and dignity to his country. This is the hope. But what is the reality? What are the new president's plans, and what sort of solutions is he coming up with? The most significant solution in the arena of human rights is that there is no other solution coming for the problem of the terror detainees. Existing legislation provides the administration with the authority it needs, according to Obama. This power was created by President Bush and makes it possible for the Obama Administration to keep people locked up indefinitely without charging them, and without due process. This decision put an end to speculation that began in May of this year that Obama might seek Congressional authorization for preventive detention of detainees.

President Obama surprised friend and foe alike back in May when he spoke about the search for a solution to the situation of the prisoners at Guantanamo. He explained that there are people imprisoned there who on the one hand can't be convicted 'for past crimes' - because the evidence against them was obtained through torture - but on the other hand can't be released because of the threat they pose to the United States. It's a radical proposition, and in order to drive that point home, MSNBC host Rachel Maddow played an excerpt from the film Minority Report [video, 1:30]. In the film, someone's guilt can be detected precrime and they can be arrested for a crime that they have yet to commit. With Obama as president, it looks like fiction is going to catch up with reality. Maddow on some of the ideas in Obama's speech: 'You could get arrested today and locked up without a trial, without being convicted, without being sentenced, for say, ten years, until the threat of your future criminal behavior passes? 'Prolonged detention', he is calling it. This is a beautiful speech from president Obama today, with patriotic, moving, even poetic language about the rule of law and the constitution. And one of the most radical proposals for defying the constitution that we have ever heard made to the American people'.

An article in the New York Times with the headline Obama Is Said to Consider Preventive Detention Plan quotes a human rights activist as saying: 'We've known this is on the horizon for many years, but we were able to hold it off with George Bush. The idea that we might find ourselves fighting with the Obama administration over these powers is really stunning'. Diane Marie Amann, law professor at the University of California, writes in reference to Obama's plans: 'He signaled a plan by which they - and perhaps other detainees yet to be arrested? - could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention'. Amann points out that this is unfortunately far from the truth, for there are precedents. 'Among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America's history under the Constitution. President Obama promised that his "new legal regime" - words identical to those Bush Administration official John Yoo used in 2002 - will provide an array of "fair procedures". That ought to be a given, for the Constitution requires due process before liberty may be deprived. But no amount of procedures can justify deprivations that, because of their very nature violate the Constitution's core guarantee of liberty'. These are Obama's plans, but the Associated Press writes about the reality: 'As many as an estimated 170 of the detainees now at Guantanamo are unlikely to be prosecuted. Some are being held indefinitely because government officials do not want to take the chance of seeing them acquitted in a trial'.

One interesting development is the recent decision to allow a suit against former Attorney General John Ashcroft to proceed. The orders for preventive detentions that he issued while Attorney General were illegal, and it is on that basis that he is now being sued personally. The case against Ashcroft is significant because what he did illegally while Bush was in office is something that Obama now wants to legalize. The case may proceed because two judges - notably appointed under George W. Bush and Reagan - had nothing good to say about Ashcroft's illegal working methods and - by way of implication - Obama's plans as well: 'We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history'.

England has had previous experience with preventive detention. 'But in late 2004 that was deemed a violation of human rights, and struck down. It was replaced with a form of house arrest, known as "control orders"', reports PBS's NOW. It's made clear in the broadcast that house arrest is also a mere legal facade for an illegal construct. '[...] restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe'. This combative opinion - at odds with legal practices in England, with those of the Bush Administration and with same such plans of Obama - originates with a well-known crusader for civil rights. Namely, Barack Obama - before he became president of the United States. Last year during a military tribunal, a terror detainee held a photo of Obama hopefully aloft. But he has since lost all hope: '[...] he has lost faith that the American leader will be much different than his predecessor'.

Obama's ideas were radical. He now maintains the extreme legislation from the Bush government. The result is that if a terror suspect is acquitted of all charges, there's not even a guarantee that he will be released from custody. Law professor Jonathan Turley writing in an article with the headline Obama Administration Reserves Right to Indefinitely Hold Detainees Acquitted of Charges: 'The Obama Administration continues its retention and expansion of abusive Bush policies - now clearly Obama policies on indefinite detention and blocking the investigation of war crimes'. In an interview with Obama, the San Francisco Sentinel makes note of a concrete example: 'In a court filing last month, the Obama administration agreed with the Bush administration position that 600 prisoners in a cavernous prison on the American air base at Bagram in Afghanistan have no right to seek their release in court'. The American Civil Liberties Union (ACLU) wants more information about the 600 prisoners in Bagram: 'There are serious concerns that Bagram is another Guantanamo -- except with many more prisoners, less due process, no access to lawyers or courts and reportedly worse conditions," said Melissa Goodman, staff attorney with the ACLU National Security Project'. But the Department of Defense and the CIA are standing in the way.
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This article contains of two parts. Also read part 2.