As David Remes, executive director of Appeal for Justice who represents about a dozen Yemeni detainees at Guantanamo, explained to me earlier today, “If you look at the fine print of the Obama refined definition, you’ll see it’s limited to this litigation,” referring to the habeas cases. In the meantime, Obama has set up a team of people — a detainee policy task force — to study and consider and decide what U.S. detention policy should be going forward. “So it could be different than what DOJ has argued in the habeas cases,” says Remes.

But will it be?

National security and civil liberties experts like Kate Martin, director of the Center for National Security Studies, and Ken Gude at the Center for American Progress are among the many lawyers urging a far narrower interpretation that would be limited to the right to detain fighters picked up on the battlefield.

Of course, there’s the question of how to define the battlefield.  But Martin and Gude, in the memo they sent to the detainee policy task force, point out one way that seems to make perfect sense: rely on the military’s definition of the scope of its combat operations.

“As two retired JAG officers have explained, when the military is operating with rules of engagement pursuant to the law of war, such circumstance defines the ‘battlefield’ and the extent of combatant detention authority,” they write, citing a paper by Geoffrey S. Corn and Eric Talbot Jensen.

“There’s a clear line,” says Martin. “When the military is authorized to shoot to kill, they have detention authority. But otherwise you have to try them.”

Remes points out that you still have the problem of defining who’s a fighter, an issue which comes up in all the habeas cases. To some extent that will have to rest with the military, and then with whatever proceedings it affords detainees to challenge their detention. (If they’re in the United States or at Guantanamo Bay, of course, detainees also have the right to challenge their detention in federal court.)

These limits still may not satisfy some civil and human rights experts, as Spencer points out. They make a strong argument that the laws of war apply to conflicts between states, not conflicts between a state and a terrorist organization. As Gabor Rona, international legal director of Human Rights First, put it to me recently, the Geneva Conventions “presumed that where it’s a non-state armed group you’re fighting against it will be domestic law that applies, because those people are all criminals. Unlike in an international armed conflict, the privilege of belligerency doesn’t apply.”

There may never be a meeting of the minds between the Rona and Martin, or what I’ll call the strict civil libertarians and the pragmatists. But given that the federal courts so far have accepted that the United States is engaged in a “war” of some sort with certain terrorist groups and seem willing to define at least some of those fighters as “enemy combatants” (or whatever the Obama administration is calling them now), it’s hard to imagine that Obama — not one to give up authority easily — will completely walk away from that paradigm in the future.

What seems the more pressing question now is whether the administration will continue to push for the extremely broad view of its war powers that it’s advocated in Guantanamo habeas cases — the same definition that allowed the Bush administration to snatch and indefinitely detain without charge anyone suspected of supporting al-Qaeda or the Taliban anywhere in the world — or if they’ll be willing to restrict their powers to a more logical and limited reading of international law.

Alternatively, will advocates for a whole new system of preventive detention — such as Neal Katyal, now Deputy Solicitor General; Robert Chesney, a law professor at Wake Forest University spending the summer on the Detainee Policy Task Force; Jack Goldsmith at Harvard; and Benjamin Wittes at Brookings — persuade the administration that it needs Congress to pass new legislation to move beyond the laws of war, so that it does have authority to indefinitely detain without charge terror suspects seized anywhere in the world?

I know that’s not what the strict civil libertarians are advocating. But I wonder if, by refusing to recognize the applicability of the laws of war at all, they’re actually (though unintentionally) encouraging a far more radical solution.

Here are some excerpts from Freedman’s letter that I hope capture the point. (The whole thing is kind of too long to publish.) Setup:

In order for there to be *a war* the adversary must be an actual or nascent nation-state, that is, an entity capable of entering into a treaty to end the hostilities. Examples include the Confederate States of America and the Barbary States (with whom we entered into treaties despite earlier denunciations of their corsairs as *pirates*) and the former government of Afghanistan, which the United States defeated in a war in 2001.

The elementary reasons for this limitation are that *war* was so understood at the time the Constitution was ratified and that, as a practical matter, a *war* will end with an exchange of prisoners.

But there is a much deeper reason.  The framers were intensely worried about abuses of military power.  During a war enemy captives may be held without charges until the end of the conflict.  In contrast, when the military uses force in other situations captured prisoners must be brought to trial.  The Constitution mandates that the second situation be the norm * whether the evildoers be denominated *pirates* or *terrorists.*

And payoff:

In its court filings regarding the roughly 230 Guantanamo detainees who face indefinite detention (as opposed to the roughly 15 who might face military commissions in some form or another) the Obama Administration has rejected the term *enemy combatants* and thus abandoned the Bush Administration*s confabulation that the country is engaged in a *war* with al-Qaeda.  The government still argues, however, that it may detain members of al-Qaeda indefinitely without charges because Congress authorized the use of force against them.  But because such detentions are an incident of war, not of the use of force, this is incoherent.

If President Obama is half the politician we know him to be, he will realize that triangulation in pursuit of liberty is no virtue. If fundamental matters of Constitutional law become mere policy differences that change with control of the White House, then a President Sarah Palin will be free to re-write whatever rules President Obama creates.  For both short-term and long-term reasons he needs to wrap himself in the flag of a return to long-held consensus values and to marginalize the Bush Administration  claims as the radical assertions they were.

I wonder what he makes of this point Brookings’ Benjamin Wittes made to Daphne, though: “… the laws of war unambiguously detain a group of people who are frankly not the real problem in the counter-terrorism arena. And they give you only very ambiguous detention authority with respect to people who are the molten core of the problem … so why not have a detention authority that is designed for the group of people you actually want to detain?”

As I note in my story, Gude and Kate Martin, Director of the Center for National Security Studies, have both written in support of the president’s right to detain combatants under the laws of war. But that support raises two key questions: who is a combatant and what is a war?

Congress, in passing the Authorization for the Use of Military Force (AUMF) in 2001, allowed the president to wage war “against those responsible for the recent attacks launched against the United States” — namely, al-Qaeda and the Taliban, when they ran Afghanistan. But since no one walks around wearing al-Qaeda or Taliban uniforms, who’s actually a member and therefore detainable remains a major point of contention.

Similarly, the laws of war allow for the detention of a combatant captured on the battlefield until the conflict is over. But whether the battlefield is the specific zone where U.S. forces are stationed in Afghanistan or Iraq, or an area as broad as anywhere in the world that terrorists who hate the United States may be found, is hotly debated. Many of the lawyers I cite in my piece today, such as Martin, Gude and the eleven lawyers who signed the letter to President Obama imploring him not to authorize some new form of preventive detention, argue for the geographically more limited definition of detention.

As Gude wrote in The Guardian: “During this ongoing military conflict, the US clearly possess the authority to detain enemy fighters captured on the battlefield or fleeing from it.”

And as the military and defense lawyers write in their letter to Obama, the laws of war “do not authorize the detention of people for terrorist activities far from the battlefield, which are not acts of war but criminal acts.”

The Bush administration interpreted the laws of war far more expansively than that, however, seizing and detaining for years suspected terrorist sympathizers as far away as Thailand, Bosnia and Illinois. Few, if any, civil libertarians would approve of such an expansive reading of the president’s wartime detention authority.

Yet those who advocate new detention legislation, such as Benjamin Wittes at Brookings, think that distinction makes little sense. And that’s why they want an entirely new system that is not constrained by the laws of war.

Because in Wittes’s view, the laws of war allow you to detain, say, a not-very-important Taliban foot soldier, but not a leading al-Qaeda agent who’s found in Pakistan, far from the zone of conflict.

“Say you raid a safe-house in Pakistan,” he said yesterday. “You capture Abu Zubaydah. There are 10 people there with him, but nowhere near the battlefield. But they’re close enough to a very senior al-Qaeda member, and involved with building live bombs.” The government ought to be able to detain them all, says Wittes, yet the laws of war don’t necessarily allow that.

“My basic point is that the laws of war unambiguously detain a group of people who are frankly not the real problem in the counter-terrorism arena. And they give you only very ambiguous detention authority with respect to people who are the molten core of the problem … so why not have a detention authority that is designed for the group of people you actually want to detain?”

That question is sure to spark more controversy in the months to come.

Morning prayer for detainees in Camp 4 of the Guantanamo Bay Detention Facility (Zuma Press)

Ever since President Obama said in his speech at the National Archives that he believes there’s a category of people at Guantanamo who can’t be tried in criminal court or by military commission but are too dangerous to release, legal and national security experts have been vigorously debating just what kind of “preventive detention” scheme the president can or should embrace.

As TWI’s Spencer Ackerman wrote on Wednesday, many civil liberties groups adamantly oppose the idea of “preventive” or “indefinite” detention at all. Since Obama made his pronouncement in May, representatives from Human Rights Watch, the ACLU, Human Rights First, New York University’s Brennan Center for Justice, the Constitution Project and many others have argued strenuously against the idea.

Illustration by: Matt Mahurin

So when the Washington Post and ProPublica reported on Friday that the Obama administration is considering issuing an executive order setting out a long-term preventive detention authority, and that some civil liberties groups had actually encouraged such an order, many of those groups were stunned.

“Our position is that there is no category of individual who can’t be prosecuted,” said Jonathan Hafetz, an attorney with the ACLU’s National Security Project. “To say the president can order indefinite detention by executive order, that’s just what Bush did for the last eight years.”

Even conservative scholars have been arguing against the idea since the Post reported that the administration was considering an executive order. As former Bush administration lawyer and Harvard Law Professor Jack Goldsmith wrote with Brookings Institution scholar Benjamin Wittes in an op-ed in the Washington Post on Monday: “Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

Wittes and Goldsmith instead argue that any preventive, indefinite detention scheme should be debated, authorized and spelled out clearly by Congress. Otherwise, they say, it will face opposition and modification by the courts, which will ultimately undermine the president’s detention power, as happened during the Bush administration. “Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief’s traditionally broad powers to detain enemy soldiers during war,” they write. “Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.” An act of Congress, then, would be a way of enhancing, rather than limiting, the executive power of indefinite detention.

And that’s where the debate now lies — between those that believe existing systems of detention under the laws of war and criminal prosecution are sufficient to handle current terrorist threats, and those who claim that the so-called “age of terrorism” demands a broader authority that Congress must create.

Although staunch civil libertarians oppose preventive detention altogether, many left-leaning lawyers would prefer an executive order issued by President Obama clarifying his authority to detain prisoners under the laws of war to an entirely new, broader system of preventive detention created by Congress, as Goldsmith and Wittes propose.

Perhaps most prominently, an influential group of military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of long-term preventive detention, but to rely on the systems we already have — with modifications, if necessary.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which has not been released publicly but was obtained by TWI. The letter is signed by eleven prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to President Obama; and Thomas Wilner, a corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” says the letter, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

Although the letter doesn’t explicitly call for an executive order, that’s one obvious way such “modifications” could be made. Ken Gude at the Center for American Progress made a similar argument recently, supporting preventive detention of fighters captured in a combat zone during a military conflict, on the Center’s web site and in The Guardian. And in a memo written with Kate Martin, director of the Center for National Security Studies, the authors write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail on Wednesday, Gude said that although he didn’t specifically propose an executive order to the administration, he supports the idea and opposes new legislation. Martin has said the same thing.

Even Georgetown law professor David Cole, ordinarily a staunch civil libertarian, has argued that the administration has such detention authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.”

Of course, there’s plenty of disagreement about who is an “enemy fighter” and how to define the “war on terror.”

The Supreme Court in Hamdi v. Rumsfeld affirmed that the executive can detain enemy fighters during wartime, but that case pertained directly only to the detention of Taliban fighters while the United States was at war with the Afghan government. Since then, the Bush administration and now the Obama administration has argued for much broader authority than that. In habeas corpus cases for Guantanamo detainees, the Obama Justice Department has argued it has “the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001?; “persons who harbored those responsible for those attacks; “and “persons who were part of, or substantially supported, Taliban or [al-Qaeda] forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.” Different judges have interpreted that authority slightly differently, and some haven’t accepted that the president’s authority reaches those providing “substantial support” to terrorist groups, but they all agree that the President has the authority to detain indefinitely those fighting a war with the United States.

An executive order, some argue, would further clarify the Obama administration’s position — and, potentially, limit its authority going forward.

Their primary aim, however, seems to be to prevent legislation that codifies a new, broader system of preventive detention based on “dangerousness”, as Goldsmith, Wittes, and Deputy Solicitor General Neal Katyal (before he was in the Obama administration) have promoted.

Wittes, in particular, a Brookings Institution scholar, last week proposed, with his colleague Colleen Peppard, model legislation that would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war. In his op-ed co-authored with Wittes on Monday, Goldsmith, who briefly headed the Justice Department’s Office of Legal Counsel under George W. Bush, appeared to endorse such a plan. (Goldsmith declined to be interviewed for this article.) Last Friday, NPR’s Ari Shapiro reported that the proposal is “already being discussed in the Obama administration.”

The idea is to create a system that allows the government to detain an individual who officials believe is dangerous and acting as an agent of an organization that is fighting the United States, yet against whom it does not have enough evidence, or the right kind of evidence, that would support a criminal prosecution. Instead of having to prove guilt “by a reasonable doubt,” which is the standard in criminal law, the government would need only prove “dangerousness” by a “preponderance of the evidence,” which is the standard of proof in civil cases. Evidence provided by intelligence officers based on hearsay, for example, would be admissible, even though it would not be allowed in a criminal proceeding. Coerced evidence, however, would not be admissible.

“It’s a lot of probablilistic human intelligence stuff that people use every day, including to target and even kill people, that U.S. courts choose not to admit,” Wittes said on Wednesday. “There are all sorts of people who you wouldn’t have a problem going to court and saying, ‘we can show this guy is dangerous. But if you force us to make a criminal case, we can’t do it. Either we don’t have enough evidence, or the proof we have, a lot of it won’t be admissible.’ ”

Civil liberties and criminal defense lawyers argue strenuously that such evidence is unreliable and therefore shouldn’t be used to deny a suspect their liberty, potentially forever. In Wittes’ proposal, the government could detain a suspect for up to 14 days without providing him a right to a lawyer or to challenge his detention. After that, the government would have to justify continued detention to a judge every six months. Wittes compares this sort of detention authority to the government’s authority to detain criminal defendants before trial, some illegal aliens, and mentally ill people who a court has deemed a danger to himself or others.

“The concept of ‘dangerousness’ is inherently somewhat speculative,” Wittes admitted. “By its nature it’s based on future activity. Imagined future activity,” he added. But “we do manage the concept of dangerousness” in these other situations. “It’s not ideal. You’d like a moral certainty as to whether or not someone is going to do something scary. As a practical matter you can’t do that.”

Gude and Martin, in their memo sent to the Obama administration’s Detainee Policy Task Force, “strongly oppose” such a plan. “While we strongly support the effort to prevent such individuals from engaging in future terrorist activities, experience demonstrates that sufficient intelligence and law enforcement tools exist to meet real national security requirements and disable such persons. Legislating a new legal framework for detaining such individuals would be unprecedented and unjustifiable as an application of the law of war. To the contrary, it would blur the important line between criminal and military spheres and undo decades of effort by the United States to encourage other countries to cabin properly the realm of military vis a vis civilian authority.”

David Golove, a Constitutional law professor at New York University, similarly calls the Wittes plan “extraordinarily problematic and dangerous.”

“One of the core features of liberal democracy is precisely that preventive detention is not allowed,” he said. “The struggle for constitutional liberty is in many ways a struggle against preventive detention.” The Wittes proposal “treats that whole problem incredibly cavalierly.” The wartime detention model, by contrast, has “deep historical roots,” he said. And detention of the the mentally ill or the accused in pretrial detention are “carved out exceptions based on very specific rationales. Every time we add a new one we’re breaking down the whole idea that preventive detention is problematic in a liberal country.”

To Wittes and some others, however, the terrorist attacks of September 11 demand just such a new exception. A preventive detention system “is the result of the unique nature of America’s conflict with transnational terrorist organizations and the limits of existing laws, both international and domestic, in responding to current threats,” he writes with Peppard in their paper, Designing Detention: A Model Law for Terrorist Incapacitation.

Whether such a system would be constitutional is another matter, and one that Wittes does not directly address in his proposal. “All of these issues are up for grabs in the courts, and both sides of the administrative detention debate can point to recent signals by the Supreme Court in Guantanamo cases to support their claims,” said Matthew Waxman, a law professor at Columbia University whose work Wittes cites for support in his paper.

It’s not clear where the Obama administration will come down in this debate, and administration officials have insisted that no decision has yet been made. On Monday, White House spokesman Robert Gibbs assured reporters that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people.” But he did not rule out reliance on a preventive detention system based on some other authority — which could be the laws of war, or an act of Congress.