Fight Brews Between Civil Liberties Groups and Obama

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Wednesday, July 01, 2009 at 6:00 am
A guard tower at the Guantanamo detention center. (defenselink.mil)

A guard tower at the Guantanamo detention center. (defenselink.mil)

It was a blind quote hitting the civil-libertarian solar plexus. Bad enough that, as ProPublica’s Dafna Linzer and The Washington Post’s Peter Finn reported late on Friday afternoon, the Obama administration was readying an executive order for a system for preventive detention in terrorism cases. President Obama himself had indicated in a May speech at the National Archives that he wanted to seek legislation toward the same idea. But an administration official told the reporters that those same opponents of preventive detention had given the president cover to pursue it: “Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order.”

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

As it happens, White House officials sought to walk the story back, with officials saying that the administration wasn’t drafting an executive order and was unlikely to issue one, as press secretary Robert Gibbs said Monday. But representatives of civil liberties groups were still stunned to see the quote. At a meeting with the administration’s task force on detentions policy earlier this month, most of the major civil liberties groups explicitly urged the administration to instead either charge Guantanamo Bay detainees and future terrorism captives with crimes in federal court or release them. Now, with the prospect of a new administration creating a regimen for holding detainees for an unbounded period without facing charges — a major target for civil libertarian fights with the Bush administration — on the horizon, several groups that hailed Obama’s election are vowing to fight the proposal.

“Any continued policies of prolonged detention without trial of Guantanamo detainees simply fails to turn the page on the counterproductive policy of the Bush administration,” said Human Rights First’s Devon Chaffee, who attended the meeting with the task force. “We oppose any prolonged detention without trial beyond what is already authorized under the laws of war. If an individual committed acts of terrorism, they should be tried in our regular federal courts.”

On June 9, a task force empanelled by Obama’s January 22 executive order to recommend changes to U.S. detention policy for “violent extremists” invited civil liberties groups to the Justice Department for a meeting led by Army Col. Mark Martins, a former legal adviser to Gen. David Petraeus in Iraq. Representatives of Human Rights Watch, the ACLU, Human Rights First, New York University’s Brennan Center, the Constitution Project, Amnesty International, the Center for National Security Studies, the Open Society Institute and the National Association of Criminal Defense Lawyers spent about two hours making a case against preventive detention, as well as offering their perspectives on military commissions, the repatriation of Guantananamo detainees, and the detention facility at Afghanistan’s Bagram Air Field.

According to attendees, the meeting was respectful and solicitous. Task force members opted to listen to civil libertarian concerns far more than they chose to present their own views, offering the occasional hypothetical example to test the contention that federal civilian courts would be adequate to handle terrorism cases. “They were very thoughtful, engaging, reflective and genuinely interested in our input,” said one participant who declined to be identified. “I didn’t get the sense that they were just rubber-stamping, so they could say they met with human-rights groups.”

The meeting was designed to be a forum for a subsection of the task force to hear from the civil liberties organizations that have been distressed by emerging administration perspectives on detention since March, when the Justice Department filed a brief in federal court claiming authority to detain terrorism captives outside of the criminal justice system. “A very strong message given at that meeting was that the vast majority of the civil-liberties community oppose any form of prolonged preventive detention without trial,” said Chaffee. “Significant emphasis was placed on the ability of federal civilian courts to handle complex terrorism cases.”

Numerous attendees said that they opposed any vehicle, either legislation or an executive order, to produce an indefinite-detention system. Some made the additional point that seeking legislation for a preventive detention strategy would allow a Congress that shows relatively little concern for civil liberties to expand the parameters of any administration approach to detention in unpredictable ways. “Given the political situation in Congress, things could get even worse, and the preventive detention bill could be even broader and more problematic than what the president suggested in the National Archives speech,” said a different participant in the meeting who also declined to be identified. The administration official quoted by Linzer and Finn “somehow misinterpreted” the message, this participant added, since support for a executive order on preventive detention was “not at all what was conveyed by anyone.”

Whether or not an executive order on preventive detention is forthcoming, Obama indicated in his May speech at the National Archives that he embraces the logic of some form of detention for terrorism detainees outside the federal civilian courts, speaking of “detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.” The same speech pledged to “work with Congress” to come up with a legal regime for detention, though the president did not explicitly indicate if such a system would include future alleged-terrorist captives in addition to Guantanamo detainees.

Accordingly, Benjamin Wittes, a senior fellow at the Brookings Institution, said that he was disinterested in the “continuing debate over whether preventive detention is a good idea or a bad one,” since “the only serious question is what the legal framework for detention will be, not whether it will happen.”

To that end, Wittes released a proposal on Friday for legislation on non-criminal terrorism detention that seeks to give the administration latitude to detain suspected terrorists beyond the battlefields of Afghanistan and Iraq but also impose judicial and congressional oversight on a process that the Bush administration left virtually unbounded, and which the Supreme Court subsequently restrained. His proposal, co-authored with Colleen A. Peppard, creates a 14-day period of detention without charge that could be expanded on a repeatable six-month basis by the federal District Court for the District of Columbia and defines the class of potential detainees in terms of actions they take “working on behalf of the enemy” as defined by acts of Congress.

Wittes added that he had discussed his ideas for preventive detention with the administration task force but declined to elaborate.

Administration officials who would not speak for attribution cautioned that much remained undecided by the administration beyond what Obama had stated publicly, as debate remains ongoing, both within the task force and within the administration more broadly. One knowledgeable source pointed to career government attorneys across the Justice, Defense, and Homeland Security Departments and the National Security Council who had been working on detainee and interrogation issues for years — officials who had been as critical of Bush administration legal excesses as they are Obama-era enthusiasm for fundamental change — as key figures in determining the nuts and bolts of the internal debate. “All those people, consistently, have been warning that the way we pick these people up can’t be separated from the way we deal with them,” the source said. “Schematically, they’re in the conservative-Democrat camp. You wouldn’t find them fundamentally different than Ike Skelton or Carl Levin,” referring to the chairmen of the House and Senate armed services committees.

Even so, human rights groups are now preparing to oppose any forthcoming legislative proposal or executive order on preventive detention. “We don’t want the administration to seek to legalize a system of preventive detention by executive order or by statute,” said Sharon Bradford Franklin, a senior counsel at the Constitution Project who attended the June 9 meeting.

The Center For Constitutional Rights, one of the few major civil-liberties groups that did not attend the June 9 meeting, “would mobilize to oppose any effort to create a preventive detention scheme,” said spokeswoman Jen Nessel. “Whether it’s in the form of an executive order or legislation, indefinite detention without charge, trial or due process goes against our most fundamental principles of justice and the rule of law.”

Michael Price, the national security coordinator for the National Association of Criminal Defense Lawyers and another meeting attendee, said the administration had yet to present a robust case that there was indeed a cohort of detainees who could not be responsibly tried in federal courts, contending that classified information would be adequately protected under statutes like the Classified Information Procedures Act. (Critics contend the act lends too much deference to a defendant.) “An executive order, I think, is dangerous,” Price said. “Congress getting legislation to pass preventive detention is also dangerous, but not any more dangerous than preventive detention itself. But we will oppose either way.”

Price continued, “I don’t think opposition with the administration is necessarily the right way to categorize this, but I think we’d be strongly opposed to the idea of the proposal.”

Cully Stimson, a former deputy assistant secretary of defense for detainee policy in the Bush administration, said he was pleased by both the agitation of the civil-liberties community and the early signals by the Obama administration about preventive detention. “The Obama guys and gals have the facts now — they’ve seen the files, read the cooperation agreements, been read into the programs,” Stimson said. “Even the human-rights advocates who were throwing spitballs at me and other Bush people when I was in [government] who are now on the task force, they clearly are in a better place factually than when they were sitting on the sidelines. Who cares what the ACLU thinks?”

Liza Goitein of the Brennan Center, another June 9 meeting participant, also rejected any preventive detention scheme. But she was heartened that the question appeared not to be settled. “It’s clear that the administration is still struggling on this issue,” Goitein said. “I can see that in the difference between what Obama said in the National Archives speech seeking legislation and then the report of the executive order. It’s safe to say the administration has not come up with a final plan. As long as that’s the case, there’s some hope that there won’t be a preventive detention regime.”

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Comments

39 Comments

Selected Reading (01/07/09) « The Bleeding Heart Show
Pingback posted July 1, 2009 @ 3:12 pm

[...] Ackerman reports on the battle brewing between civil liberties groups & the Obama [...]


links for 2009-07-01 « The United States of Jamerica
Pingback posted July 1, 2009 @ 9:10 pm

[...] Fight Brews Between Civil Liberties Groups and Obama | The Washington Independent [...]


Samuel Scharff
Comment posted July 1, 2009 @ 10:20 pm

“Cully Stimson, a former deputy assistant secretary of defense for detainee policy in the Bush administration, ..Who cares what the ACLU thinks?”

Yap, yap…spoken like a true Bush lapdog…

Who cares? Us citizens, including in particular those of us who have sworn to protect the Constitution against all enemies, foreign and DOMESTIC…

Amendment 6 ..In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.


WilmaSonoma
Comment posted July 1, 2009 @ 10:26 pm

I oppose preventative detention under ANY NAME, ORDER, LAW, etc. I adamantly present that the very idea of preventive detention is against our founding laws and principles, which at this point are already in a very weakened position thanks to the Bush Administration. The Obama administration appears to want to strengthen the very positions we have been against since day one of the Bush Admininstration. THIS IS CHANGE?


johnhkennedy
Comment posted July 2, 2009 @ 1:38 am

Don't know how long it will take to get President Obama to do the right thing
but we are in it for the long haul,
to win on our issues.

SIGN THE PETITION

http://ANGRYVOTERS.ORG

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Daniel Bell
Comment posted July 2, 2009 @ 5:03 am

There is no way this country should continue or even discuss any process that legalizes “prolonged detention” schemes.

If a person or persons commits a crime against non-military U.S. government property or non-military U.S. citizens in another country there are already constitutional means for arresting, charging, indicting, prosecuting, and sentencing them in our courts or in the host country's courts.

There is absolutely no need for extra un-legal approaches, even when dealing with, the very over used term, terrorist. I remember a time when people attacking an occupation force were called “freedom fighters” or “liberation armies”, or “insurgents”.

If the U.S. stopped invading other nations who refuse to bow to U.S. mandates maybe there would be no need to pick up young men of fighting age and lock them away until they are too old to resist U.S. occupation plans.


Obama Seems to Rule Out Executive Order on Indefinite Detentions | The Paris - San Francisco
Pingback posted July 3, 2009 @ 12:03 am

[...] possibility of carrying out such a policy through an executive order was widely criticized by civil rights groups last week, including the American Civil Liberties [...]


Seasnake
Comment posted July 4, 2009 @ 9:55 pm

The issue of indefinite detention without charge, evidence, trial, conviction, or sentence, is clearly against the Constitution. Therefore, any Executive Order, or Law introduced would be unconstitutional, and require a Constitutional Amendment to make it legal.
It was the ongoing defiance of the Bush administration, in this respect, which stepped outside the law and literally endangered all citizens and residents of our nation. This also enabled the horrific acts of torture and murder of innocent human beings under the aegis of the Bush Administration, and which provided for the thrust to close Guantanamo Bay. To repeat the same, would be to merely create a new Guantanamo Bay.
Over riding this is the definition of the word “Terrorist”. The St. Martin's Roget's Thesaurus defines this as “opponent, revolter or alarmist”. This would seem to provide an extraordinarily broad field for arrest and permanent detention !

The common perception of the word is “one who violently attacks our side”. By contrast, one on our side who violently attacks their side is a “hero, a freedom fighter, or a liberator” – but definitely not a terrorist. Thus when Bush sent money and troops into Iran to support the MEK and other terrorist groups who set off bombs and killed citizens there, they were definitely not terrorists and Bush was not a terrorist leader!
So the Iranian authorities would not have been able to arrest any of our troops and detain them indefinitely
without charge or trial !

DO I SEE SOME INCREDIBLE COMPLICATIONS OF INTERNATIONAL LAW AND JUSTICE?

Of all the detainees held in Guantanamo Bay over 600 were released and sent home or to other countries.
Presumptively they were considered not to be a danger to the USA.
So why were they detained in the first place, or not released shortly after detention?

We now have a cohort PRESUMED to be a danger to the USA, but we are not informed why they are presumed to be a danger. This is a “State Secret”.

So far it appears that we have a legal and ethical entanglement of astronomical proportions, shrouded in mystery and secrecy. The inherent danger in this to our Constitution and Democracy is incalculable,
and is severely compounded by the fact that the decision to detain indefinitely will be in the judgement of only one man – not only our current President, but all future Presidents !

THIS IS MIND BOGGLING !


ProPublica: Obama Seems to Rule Out Executive Order on Indefinite Detentions | Second Reagan Revolution
Pingback posted July 6, 2009 @ 2:40 pm

[...] possibility of carrying out such a policy through an executive order was widely criticized by civil rights groups last week, including the American Civil Liberties [...]


Bloggers Rub Eyes And Wonder If They Are Seeing George W. Bush « Around The Sphere
Pingback posted July 6, 2009 @ 7:45 pm

[...] Ackerman has two stories on this, here and here. It was a blind quote hitting the civil-libertarian solar plexus. Bad enough that, as [...]


Torture News Roundup: Farewell (for awhile) (updated) | nFiniteEcho.com
Pingback posted July 8, 2009 @ 7:04 am

[...] possibility of carrying out such a policy through an executive order was widely criticized by civil rights groups last week, including the American Civil Liberties [...]


Kentucky Real Estate
Comment posted July 8, 2009 @ 9:33 am

Great posting.I adamantly present that the very idea of preventive detention is against our founding laws and principles, which at this point are already in a very weakened position thanks to the Bush Administration.


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Preventive detention is against our principles and constitution. That is what I believe and this can be true especially after what Bush has done when he was leading.
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