Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the Obama administration nears its deadline for deciding where to try the men suspected of masterminding the Sept. 11, 2001 terrorists attacks, there are strong indications that those trials could take place in federal courts in the United States. That’s prompting fervent opposition from Republicans, who say the 9/11 terrorists should never be allowed anywhere on U.S. soil, let alone in a civilian U.S. court.

Illustration by: Matt Mahurin

Military Commissions lead prosecutor Capt. John F. Murphy told reporters in September that four different U.S. attorneys offices in New York, Washington and Virginia were vying for the opportunity to try the five now-infamous defendants, which include Khalid Sheikh Mohammed, the self-described mastermind of the attacks on the World Trade Center and the Pentagon. Walid Muhammad Salih Mubarek Bin ‘Attash; Ramzi Binalshibh; Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi are the other four. According to Murphy, the Eastern and Southern Districts of New York, based in Brooklyn and Manhattan, respectively; the Eastern District of Virginia, based in Alexandria; and the District of Columbia had all submitted requests to hold the high-profile trials in their courthouses, and to detain the suspects in their jails during trial. The military commissions are also seeking to try the defendants.

Meanwhile, White House lawyers, a task force advising the president, and President Obama have all said that their preference is to try terror suspects in federal courts whenever possible, although they have not ruled out the possibility of using military commissions to try some of them. It remains unclear which ones.

The administration has promised to make its final decision on where to try the 9/11 suspects by Nov. 16. Fearing that the administration is inching toward bringing them to New York City or the Washington, D.C., area, opponents of trying high-level terrorists in U.S. federal courts are stepping up their efforts to keep the five men out of the United States for any purpose. On Oct. 9, Sen. Lindsey Graham said he’d attached an amendment to an appropriations bill that would prohibit the Obama administration from spending money on prosecuting and trying these five alleged terrorists in U.S. civilian federal courts.”Khalid Sheik Mohammed needs to be tried in a military tribunal,”Graham told McClatchy Newspapers. “He’s not a common criminal. He took up arms against the United States.”

Graham is not alone in that view. In August, he joined Sens. Joe Lieberman (I-Conn.), John McCain (R-Ariz.), and Jim Webb (D-Va.) in sending a letter to President Obama expressing concern over reports that the Administration may try Khalid Sheik Mohammed and other alleged war criminals in civilian courts. The senators urged the administration to try them in military commissions instead, saying in part:

The bill, H.R.2847, is pending in the Senate as an amendment to an appropriations bill.

On Tuesday, former Attorney General Michael Mukasey made a similar argument against allowing the 9/11 defendants to be tried in a civilian federal court in an op-ed in The Wall Street Journal. Mukasey warned that the costs and burdens of security would be enormous, that housing suspected terrorists in U.S. prisons would threaten national security, and that a public trial would elicit sensitive evidence that would compromise intelligence sources and that terrorists will later use against us.

Those sorts of arguments outrage many legal experts and former military officers, who say that only a public trial in a U.S. federal court that affords terror suspects the same rights as all ordinary criminal suspects will carry the legitimacy necessary for such an important trial. And they dismiss the claims that housing terrorists in U.S. maximum security prisons, where terror suspects have been imprisoned for many years, would create any danger at all.

“The federal criminal justice system has adjudicated nearly 200 cases involving international terrorism in the year shortly before and since 9/11,” said Gabor Rona, International Legal Director of Human Rights First, which opposes the use of military commissions to try any Guantanamo detainees. “The idea that it cannot handle classified evidence, evidence from abroad, evidence obtained in the context of armed conflict, all of those have been proven false by the existence and the adjudication of all of those case in the federal criminal justice system, and many of those cases feature precisely those problems.”

“The bulk of resistance to bringing Guantanamo detainees to the U.S. is simply uninformed,” Rona continued. “The ‘not in my backyard idea,’ which I think is a crazy notion of people fearing that they’re going to have to be sitting next to a member of al-Qaeda when they go into Starbucks, is just nuts. We’re not talking about releasing suspected or known terrorists into the streets. We’re talking about transferring them to highly secure correctional and detention facilities for purpose of trial. If they’re found not guilty or guilty and they serve sentences, they’re still not entitled to be in the U.S., they will be deported. I think the administration is confident, and should be confident about being able to convey that this is not a situation that involves risk to Americans.”

Some former military officials hope the president will see it that way as well. On Tuesday, a group of retired generals sent an open letter to Congress, kicking off a campaign to close Guantanamo Bay and have the detainees brought to the United States for federal court trials.

“With 145 convicted international terrorists being held in our prison system, there has been no escape from a supermax correctional facility in the United States,” said retired Lt. Gen. Robert Gard, Chairman of the Center for Arms Control and Nonproliferation, on a conference call with reporters on Tuesday. “It does not threaten the security of this country to move however many of the remaining 226 detainees that we cannot farm to other countries or try and incarcerate, to move them from Guantanamo into our supermax facilities. The claim from members of Congress that this threatens American security is shameful and without a basis.”

Still, even some civil libertarians believe it would be legitimate for the administration to try the Sept. 11 suspects in military commissions at Guantanamo Bay or on U.S. military bases. “Our view is that as a legal matter, the 9/11 conspirators, unlike some other detainees at Guantanamo, could be tried in either federal court or military commissions,” said Kate Martin, director of the Center for National Security Studies. “Then it’s a matter of policy considerations.”

Although Martin says a defendant could get a fair trial in a military commission, that’s not necessarily the case under the current Military Commissions Act, even if recent amendments passed by the House were adopted. “One of the hallmarks of a fair trial is that it’s public,” and the military commissions have so far severely restricted public access. “If they choose the forum based on an interest in keeping parts of the trial secret, then they will lose their legitimacy right there,” she said.

Some military commission critics claim that one reason some Republicans support using military commissions is to keep hidden any evidence that the detainees were tortured by U.S. authorities, which the defendants or their lawyers would almost certainly present in their trials.

“There is a second objective in everything that someone like Mukasey is saying,” said American Civil Liberties Union attorney Denise LeBoeuf, who directs the John Adams Project, which organizes defense lawyers to represent the Guantanamo detainees. “That is covering up the details and the identities of torturers. This country had a systematic system of torture through the military and through contractors. Some of those people objecting to federal court trials now either implemented it, or knew about it and should have said something,” she said, adding that some are still in the administration and have an interest in preventing the information from surfacing.

Indeed, according to Justice Department memos revealed earlier this year, Khalid Sheikh Muhammed was waterboarded 183 times. Details of his treatment would likely come up in his defense, if he were to present one. On the other hand, he has confessed and even boasted to having masterminded the attacks numerous times, and has said he does not want a lawyer and wants to be martyred. He still could bring up his treatment by U.S. authorities in a trial, however.

LeBoeuf and other lawyers involved in the defense of high-level detainees say they’ve heard rumors that the administration wants to try the 9/11 detainees in federal court, but it’s impossible to know for sure what U.S. officials will do until they issue their decision.

To LeBoeuf, the fact that the 9/11 case is so high-profile is a strong reason for trying the suspects in public, in a civilian federal court in the United States.

“When you say the whole world is watching a case, this is the one,” LeBoeuf said. “This is the one where the administration has the greatest urgency and pressure to do it in a fair court. It’s also the one where there are mountains of evidence — for both sides. It’s the most investigated crime in the history of the United States. If you can’t put this case into a federal court, then what case can you?”

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.

The debate over so-called “preventive detention” has obscured the real issues facing the administration. The laws of war have always allowed the military to detain fighters seized on the battlefield, indefinitely without charge until the end of hostilities. The Supreme Court’s Hamdi decision in 2004 approved such traditional law of war detention for fighters seized in Afghanistan. Some such fighters are now detained in Guantanamo (where they are entitled to habeas) and some are detained in Afghanistan. US forces are still engaged in combat in Afghanistan and now in the border region of Pakistan and will be for some indefinite period. I have no doubt that the Obama administration will continue to claim the authority to “preventively” detain fighters seized on the battlefields of Afghanistan or the mountains of Pakistan. No additional authority from Congress is necessary for them to do so and we and other civil libertarians for many years have recognized that such traditional law of war detentions without charge are perfectly proper.

The issue that has yet to be resolved by the Obama administration is whether they will continue the Bush administration’s claim of authority to pick up suspected terrorists far from any zone of active hostilities and hold them without criminal charge but with some form of ersatz due process. The [Jack] Goldsmith/[Benjamin] Wittes etc. faction has long been urging a new statute to allow detentions of suspected terrorists without any criminal trials based on secret evidence from intelligence agencies. I take the Washington Post article that the administration may not endorse legislation as a potentially positive sign that this pernicious idea may be rejected.

If that happens, we will have much to rejoice about. At the same time, the Obama administration will still have to deal with the so-called “legacy” cases; individuals who should never have been picked up under the laws of war, who are now in Guantanamo (and a handful in Bagram) and who in order to continue to be detained, should immediately be charged with criminal offenses.

Recall that Martin told me on Friday that she was a civil-libertarian defender of using an executive order as a way of forestalling an over-broad legislative proposal for preventive detentions.

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

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.”