Obama’s Detention Dilemma

Tuesday, June 09, 2009 at 4:51 pm
Sens. Russ Feingold (D-Wisc.) and Tom Coburn (R-Okla.) (WDCpix)

Sens. Russ Feingold (D-Wis.) and Tom Coburn (R-Okla.) (WDCpix)

The transfer of former “high-level” Guantanamo Bay detainee Ahmed Ghailani to a federal prison in New York on Tuesday highlights the dilemma President Obama faces over what to do with the 240 detainees remaining at the Guantanamo Bay prison, as well as any others he claims will need to be detained indefinitely without trial in the future.

Ghailani, a Tanzanian seized in Pakistan in 2004 on suspicion of participating in the 1998 U.S. embassy bombings in East Africa, spent two years under interrogation in a secret CIA prison before being sent to Guantanamo in 2006. Today, while expressing full confidence in the U.S. criminal justice system, Attorney General Eric Holder initiated Ghailani’s prosecution in federal court — 11 years after the crime.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

At the same time, President Obama is considering creating a new system of “preventive” indefinite detention for some detainees “who cannot be prosecuted yet who pose a clear danger to the American people,” as he said in his May 21 speech at the National Archives. That prospect has sparked a bitter controversy among legal and national security experts over who would be detained, the legality of such detention, and the implications for the national security of the United States.

“Indefinite detention without trial is a hallmark of abuse,” Sen. Russ Feingold (D-Wis.) wrote in a letter to Obama the day after Obama’s speech. On Tuesday morning, Feingold convened a hearing of the Senate Judiciary Committee’s Subcommittee on the Constitution to further explore the issue.

Witnesses debated the legality of detaining suspected terrorists picked up around the world – as opposed to detaining “combatants” on a clear “battlefield,” as international law allows. But much of the hearing’s testimony focused on how a policy of indefinite detention of suspects who are presumed “dangerous,” yet the United States refuses to try as criminals, will affect the nation’s moral standing in the world and its ability to fight al-Qaeda.

Sen. Tom Coburn (R-Okla.), the ranking Republican on the subcommittee, presented the GOP’s position by emphasizing that in Hamdi v. Rumsfeld, the Supreme Court “allowed for the indefinite detention of enemy combatants without trial” and praised Obama for embracing that power.

But others noted that the Hamdi ruling is not nearly that broad, and argued that the indefinite or “preventive” detention of suspects seized around the world has no precedent in international law.

Sarah Cleveland, professor of human and constitutional rights law at Columbia Law School, testified that Hamdi v. Rumsfeld only allowed “states to apprehend enemy troops in a traditional conflict and to hold them until the end of that conflict.” The only issue in that case, she said, was the detention of an armed combatant in the U.S. war with the Taliban-led Afghan government, which was a traditional international conflict.

But the U.S. government has also claimed “a roving power to detain persons seized outside a traditional theater of combat,” and that claim “has brought the United States widespread international condemnation, eroded our moral authority, and inspired new converts to terrorism,” testified Cleveland.

One major difficulty in the current situation is identifying the “battlefield” in a global war on terror and deciding who is a “combatant” in it. That’s something that the administration has been struggling with in a host of individual habeas corpus cases pending in federal court – most of which, it has lost, as the government has been unable to present sufficient evidence that the suspect imprisoned at Guantanamo Bay for years was actually a member of al-Qaeda or the Taliban, or any associated forces fighting the United States.

A newly authorized system of preventive detention would seek to avoid such court losses.

The idea that the United States must prosecute combatants is “myopic to put it gently,” said David Rivkin, a lawyer in the Reagan and Bush administrations and now a partner in the firm Baker & Hostetler.  “It is virtually impossible to obtain the sort of evidence necessary [for a prosecution] in a battlefield,” he said. “You’re not going to run a CSI Kandahar … to me the notion that there’s this other alternative of prosecuting them is not possible. We cannot fight this war if we’re not going to have a military paradigm.”

The tension between whether the United States is fighting a “war” or trying to track down and prosecute violent criminals has created a rift — with human rights advocates and some military and national security experts on one side, and the Obama administration, which on this issue seems aligned more closely with Congressional Republicans, on the other.

Elisa Massimino, executive director of Human Rights First, testified that senior military officials recently warned that the president’s plan for military commissions and preventive detention would undermine international confidence in the American judicial system and provide more fodder for the United States’ enemies.

“The Guantanamo detentions have shown that assessments of dangerousness based not on overt acts, as in a criminal trial, but on association are unreliable and will inevitably lead to costly mistakes,” she said. “This is precisely why national security preventive detention schemes have proven a dismal failure in other countries. The potential gains from such schemes are simply not great enough to warrant departure from hundreds of years of western criminal justice traditions.”

Cleveland similarly testified that “prolonged detention of non-battlefield detainees is viewed as illegitimate by the advanced democracies who are our allies and undermines their cooperation with our global counterterrorism efforts.”

“No other European or North American democracy has resorted to long-term detention without charge outside of the deportation context,” Cleveland said. “Our closest allies—including the United Kingdom, France, Spain, Germany, Australia, and Canada—do not resort to such detention. … Among advanced democracies, only Israel and India have adopted long-term detention systems for terrorism suspects. Both regimes are highly controversial, and the U.S. State Department consistently has criticized the practices of both countries.”

Tom Malinowski, Washington Advocacy Director of Human Rights Watch, emphasized that the military paradigm accords terrorists the undeserved dignity of being “warriors” against what is, in their minds, an evil empire. “Anytime we treat these detainees as something special,” he said, “we are actually reinforcing their narrative, their story about who they are, global warriors in a global struggle,” he said. “It’s a narrative the helps them recruit more people to their hateful cause.”

He warned that it also creates a dangerous precedent for other countries.

“Russia sees anyone who stands up to its authority in the Caucasus as a terrorist,” he said. “Would we be comfortable if we accepted the idea that Russia could detain or kill anyone in the world who threatens their rule in the Caucasus? Or if the Chinese go around the world rounding up Uighurs because they’re suspected of being engaged in war on terror against China?”

To which Rivkin retorted: “Just because a bunch of hypocritical politicians in Russia or China or Egypt claim to be inspired by our example does not make it so.”

The witnesses all appeared to agree, however, that the issue is urgent and extends far beyond the situation of the 240 prisoners at Guantanamo Bay.

As Richard Klinger, a former Bush administration lawyer testified, the U.S. military is already detaining thousands of suspected al-Qaeda and other alleged terrorist supporters around the world. “The debate over indefinite detention often wrongly focuses on Guantanamo Bay,” he said. “The current practice is considerably more widespread, and any limitations on indefinite detention would have correspondingly wide implications.”

Which of the U.S. military’s detentions are legitimate, and what kind of new detention scheme can be created and justified by the Obama administration, are core questions that Congress, the courts and the president will be called on to answer in the coming months.



Sharm el sheikh excursions
Comment posted June 9, 2009 @ 2:38 pm

but they should put an end to that scandal

Tour Egypt
Comment posted June 9, 2009 @ 2:39 pm

how they gonna deal with it?

Egypt tours
Comment posted June 9, 2009 @ 2:40 pm

in co operation with other the will find the way out.

Egypt tips
Comment posted June 9, 2009 @ 2:41 pm

others can not help as they did not stat it..Americans did.

Obama’s detention dilemma « Later On
Pingback posted June 9, 2009 @ 6:47 pm

[...] in Democrats, Government, Obama administration at 3:47 pm by LeisureGuy Daphne Eviatar in the Washington Independent: The transfer of former “high-level” Guantanamo Bay detainee Ahmed Ghailani to a federal prison [...]

Comment posted June 9, 2009 @ 9:52 pm

I don't see how it highlights any dilemma or send a mixed message. Obama made clear that this is the solution he prefers.

Outraged Iowan
Comment posted June 10, 2009 @ 6:13 am

I'm still having a hard time digesting that Obama–who ran on transparency in government and reclaiming our moral authority–would even consider such barbaric practices as indefinite detention and an entire made-up “legal regime” for those we sweep up off the streets and declare “terrorists.” The fact that the most extreme Republican shills and Obama are on the same page should tell us something. Obama is willing to forgo his moral credibility–for what? In order to avoid prosecution of those who pose the biggest threat to our democracy: Bush, Cheney, Rumsfeld, Rice, and some Democrats and Republicans in Congress. What a cowardly stance he's taking and how little he regards the suffering of others. He's turning out to be a man who makes soaring speeches, but is, in reality, a man who lacks a moral compass.

Comment posted June 10, 2009 @ 9:03 am

He's a proven liar now. Plain and simple. He doesn't have the courage of his own convictions which means only one thing as you say: Obama is a coward and a weakling and certainly not an advocate for democracy. Simple solution – vote against him next time. I'm a progressive liberal but I would welcome a GOP president over the shameless liar I unfortunately voted for in 08. It doesn't feel good to be betrayed by a fraud, does it? Don't let it happen again.

Hawaiian style
Comment posted June 10, 2009 @ 10:29 am

Which America do you live in?

The one I want to live in is governed by law, the Constitution and Justice.

I don't want to give to my kids an America where the president can detain even US citizens indefinitely without trial simply because he says they are dangerous. PROVE IT. Prove they are dangerous in a court of law with rules of evidence and a jury.

President Obama you are wrong on this. Even though you look calm and confident you are scared on this. You are afraid an attack, or a political attack will make you look soft on terrorists.


I don't believe the US will survive as a true democracy or as a Constitutional Republic if you prefer if Politicians can change the rules. Politicians are too subject to political pressure.

If you thing I'm wrong prove it. Look at your policies. You have changed due to political pressure. Look at Congress wallow in special interest influence rather than do what the Country needs.

Comment posted June 10, 2009 @ 11:05 am

After Obama's vote last year to grant retroactive immunity to the telecoms for their participation in the NSA's illegal warrantless wiretap program, I knew then he could not be trusted on Civil Liberties. But what were the alternatives….McCain/Palin?

It just points that we need to make sure our elected leaders get the message that we expect more than just the same thing. They need to hear from you that you want transparency and accountability in our government. When they fail, throw their a$$es out!

Currently, the rule of law, the foundation of our republic, is under attack from all sides and it will be interesting to see if we can correct these injustices and recover our standing. If we allow ourselves to fall into the hands of corruption, that secrecy and these authoritarian measures bring, I'm afraid we will ultimately collapse.

Maybe I grew up a bit naive, but I thought we were supposed to be an example for the rest of the world. What happened to that paradigm? If it is dead, it would seems the terrorist did defeat us after all.

This is our big moment to see if we live up to our highest standards that we have set for ourselves. If we fail, God help us all.

Comment posted June 11, 2009 @ 9:29 pm

I don't think a GOP president would be any different. Hopefully, the political climate in 4 years will be that so people will wake up and realize that neither the Democrats nor the Republicans can be trusted. Third parties must be heard and we need a strong civil libertarian voice.

Hawaiian style
Comment posted June 12, 2009 @ 11:31 am

Permanent detention. Why do we keep creating a new can of worms? Someone in the Whitehouse needs to be the devils advocate and point out all the things that can go wrong. Gitmo is a great example. World opinion. Al Qaeda recruitment. Urighurs imprisoning. Torture.

Permanent detention for how many? Who decides who is to be detained? What if this administration is Just, but the next is like the previous administration? We will have the same problem all over again. The facility will become a political gulag.

Fix the problem don't make another one. Try them in Federal Court.

Either our Constitution and Bill of Rights are applicable to modern society or they are not.
Don't just ignore these uniquely American guiding documents, or apply them selectively. If they are no longer useful propose changes through the prescribed process.

Be American. Strong, Righteous, Generous and Just. Be American. Be courageous, optimistic and fearless.

We have never been defeated. Our worst enemy is ourselves until some catastrophe unites us, or some leader does. Be that leader. FIX the problem with a real, legal, constitutional solution.

Comment posted June 13, 2009 @ 9:18 am

President Rham Emanuel will not sign this document with a pen. He will use his stamp -Barack Obama!

Comment posted June 13, 2009 @ 4:18 pm

President Rham Emanuel will not sign this document with a pen. He will use his stamp -Barack Obama!

Comment posted June 19, 2009 @ 6:19 pm

Its nice that we are at least open and up front in the world that we have been and want to continue our path to becoming the worlds biggest third world dictatorship.

It would be dishonest and perhaps even immoral for us the engage in preventive detention, preemptive war, illegal war (aggression), illegal domestic spying, torture, rendition, imprisonment by fiat of the government and all the other abuses of the Constitution and Bill of Rights without saying we are going to do it.

After all is not Transparency in Government a hallmark of the Obama governance?

When you look at all the unAmerican changes our politicians have done to keep us safe, and to pursue the “War” on terror, it's hard not to see how Osama did not win.

Auwe, Auwe.

Comment posted January 15, 2010 @ 12:12 am

i think he will do his best

Comment posted February 1, 2010 @ 10:17 am

i think he will find solution for that soon i trust him

Comment posted February 1, 2010 @ 3:17 pm

i think he will find solution for that soon i trust him

louis vuitton
Comment posted August 5, 2010 @ 12:11 pm

Fix the problem don't make another one. Try them in Federal Court.

louis vuitton handbags
Comment posted August 6, 2010 @ 8:45 am

Its nice that we are at least open and up front in the world that we have been and want to continue our path to becoming the worlds biggest third world dictatorship.

How civilized, law-abiding countries imprison terrorists
Pingback posted August 17, 2010 @ 3:37 pm

[...] Washington Independent‘s Daphne Eviatar has a good summary of yesterday’s Senate hearing on Obama’s proposed policy of indefinite, preventive [...]

How civilized, law-abiding countries imprison terrorists - Salon.com
Pingback posted May 21, 2011 @ 8:07 am

[...] Washington Independent‘s Daphne Eviatar has a good summary of yesterday’s Senate hearing on Obama’s proposed policy of indefinite, preventive [...]

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