William Lietzau (Defense Department photo)

A key behind-the-scenes architect of the Bush administration’s first version of the military commissions for terrorism suspects — which the Supreme Court found to unconstitutionally restrict the legal rights of detainees — will take a central Pentagon position dealing with detainee policy for the Obama administration.

William Lietzau, a Marine colonel who currently serves as deputy legal counsel to the National Security Council, is poised to become the Pentagon’s new deputy assistant secretary for detainee affairs in the next several weeks. Lietzau, an international law expert described even by his critics as a brilliant and energetic attorney, previously served as a special adviser to Jim Haynes, the top Pentagon lawyer during Donald H. Rumsfeld’s tenure, when Rumsfeld and Haynes codified torture and indefinite detention as hallmarks of Bush-era terrorism policy. The position, which is not subject to Senate confirmation, came open late last year, after Phil Carter, the previous deputy assistant secretary for detainee affairs and a favorite of civil libertarians, abruptly resigned.

[Security1]As the next deputy assistant secretary, Lietzau will be at the center of the Obama administration’s decisions about trying the remaining Guantanamo detainees in reformed military commissions or in federal courts. He will also be central to the construction of a post-Guantanamo terrorism-detention policy in an administration that claims to be more committed to the rule of law than its predecessor. Lietzau is said to have gained the confidence of senior administration officials over the past year, particularly as he helped revise the military commissions to include greater process protections for defendants — even though civil libertarian groups still consider those rules to be unfair.

Two senior military lawyers who fought with Haynes over military commissions and interrogations in the Bush administration said they were surprised to hear of Lietzau’s impending appointment to the Obama Pentagon. Retired Rear Adm. Don Guter, who served as the Navy’s Judge Advocate General from 2000 to 2002, described Lietzau as a close Haynes confidante but not an outspokenly opinionated figure. “If he disagreed with Jim Haynes you’d never know about it,” Guter said. “Because of his close association with Haynes I’d be more comfortable if I saw something public [indicating] he’d made a break with those policies.”

Retired Army Maj. Gen. Thomas J. Romig also described Lietzau as closely tied to Haynes, whose role in instituting extreme interrogations at Guantanamo Bay against the wishes of military lawyers cost him Senate confirmation for a federal judgeship. Romig, the Army’s Judge Advocate General during Bush’s first term, said that although he did not know specifically what positions Lietzau took on detainee interrogations or if Haynes even consulted him on the issue, “at that time, he was certainly in the bosom of the administration that was running interrogation programs that at the very least were quite troubling, and in many minds were a violation of the laws of war and the Geneva Conventions.” Lietzau’s expertise in international law — he was part of the Clinton administration’s delegation to the 1998 Rome conference that wrote the treaty establishing the International Criminal Court — should have allowed him to know “what was right and wrong with [Bush's] interrogation policies,” Romig said.

While Lietzau was close to Haynes, he also became close to retired Marine Gen. Jim Jones, now Obama’s national security adviser. The two officers met in Europe a few years after Lietzau had left the commissions, when Jones commanded U.S. military forces on the continent and Lietzau was his staff judge advocate. Lietzau joined the National Security Council last spring at Jones’ request.

Lietzau has many advocates in the legal and policy communities. John Bellinger, the former National Security Council and State Department legal adviser during the Bush administration, sparred frequently over detainee treatment with Haynes and David Addington, Dick Cheney’s attorney, who took far more extreme positions. But Bellinger, now a partner with the law firm of Arnold & Porter, considered Lietzau a first-rate appointee. “I think Lietzau is an excellent choice who knows the issues and is pragmatic and non-ideological,” he said. “I have never seen him to approach terrorism issues or international justice issues in an ideological way.

Similarly, Eugene Fidell, a Yale Law professor and president of the National Institute of Military Justice, called Lietzau’s appointment “creative,” despite any substantive policy disagreements they had. “The last thing I want is someone to come into the job without the respect of the military bench and bar, which he would have,” Fidell said, “and having to start from scratch in understanding the legal environment.”

Rosa Brooks, a Pentagon policy official who criticized the military commissions during the Bush years, added that while she couldn’t confirm Lietzau’s appointment, “I am a fan of Bill Lietzau’s. He’s smart, an honest broker, and has both intellectual and moral integrity.”

Lietzau was the first prosecutor for the military commissions established in 2001 — an official Pentagon release called him “instrumental” to the military commissions’ “preparations” — and served in that role until 2003. Yet during that time, the commissions did not bring charges against a single detainee, a fact that raised eyebrows among his colleagues. “I have to believe in his position Lietzau was being used by Jim Haynes as a sounding board or adviser on all international law issues,” Romig said, “because he was not doing much as chief prosecutor.

In a valedictory May 2003 press briefing, Lietzau described his role as “really the process portion of setting up military commissions.” That process, established by Rumsfeld, his deputy Paul Wolfowitz and Haynes, departed significantly from the military’s courts-martial system, restricting a defendant’s right to a public trial and allowing for hearsay to be admissible, although Lietzau pushed for defendants to retain the presumption of innocence. At the briefing, a reporter asked Lietzau if the commissions provided a defendant with a defense comparable to the normal military justice system, and he replied that the commission’s rules “were drafted to accommodate that kind of flexibility that would be needed.” But five years after their creation, a 5-4 majority of the Supreme Court ruled that the commissions were unconstitutional, improperly established by the administration and providing defendants with insufficient due process rights. In 2006, Congress passed a law authorizing a new version of the commissions although the Supreme Court in 2008 found problems with the process rights of the new commissions as well.

One senator who voted against the 2006 Military Commissions Act was Barack Obama. Last May at the National Archives, in one of Obama’s most important national security speeches as president, Obama criticized “the flawed commissions of the last seven years” and said his embrace of a reformed version of the commissions would bring them “in line with the rule of law.” Some in the administration believe Lietzau is, however ironically, the man for the job. A senior administration official who would not speak on the record because Lietzau’s appointment has not been announced said that the colonel “believes the rule of law is a fundamental part of our effort in the fight against al-Qaeda” and that Lietzau’s long experience with both the military commissions and international law provides the administration with “value added as we work with Congress” on a “durable” legal infrastructure for terrorism detainees.

At times Lietzau has expressed surprise about the Bush administration’s terrorism decisions. During a talk he gave at Harvard shortly after 9/11, he said he doubted that the administration would seek to try anyone in a military commission; months later he was helping design them. And in an article for a book on terrorism and international law published in 2002, Lietzau averred that President Bush’s assurance that the military treat detainees in the “spirit” of Geneva Conventions ensured that detainees “will continue to be treated humanely.” Over the next several years, dozens and perhaps hundreds of people detained by the U.S. in Guantanamo, Afghanistan, Iraq and elsewhere were tortured — activities President Obama expressly forbid during his first week in office by issuing an executive order restricting interrogation techniques to those listed in the Army’s field manual.

Lietzau was a deputy to Haynes during the winter of 2002 and spring of 2003, when Haynes presided over an internal Pentagon debate resulting in the modified adoption for Guantanamo of “enhanced interrogation” techniques authorized for the CIA to use on senior-level al-Qaeda detainees. A Senate Armed Services Committee investigation from 2008 determined that Haynes was a powerful bureaucratic force pressing for harsher detainee treatment. A former colleague in Haynes’ office, Richard Shiffrin, told the committee that Lietzau was present at a key 2002 meeting in which participants expressed “some frustration with the quantity and quality of information being obtained” at Guantanamo, although Shiffrin did not attribute any substantive position to Lietzau. And no source for this piece had knowledge of Lietzau having anything to do with torture.

It is unclear what exactly Lietzau’s appointment signifies in terms of concrete policy decisions or shifts. An email to Defense Secretary Gates’ spokesman, Geoff Morrell, went unreturned. But Bellinger predicted Lietzau would “adopt a balanced approach between the security needs of the country and military and the need to address worldwide concerns that we do not have an appropriate legal framework or legal policies.” The senior administration official said Lietzau was “bound and determined to make sure, whether it’s in three years or seven, when he walks away from this job, there is a durable legal infrastructure” to handle terrorism detainees justly.

Both Guter and Romig, the former senior military JAGs who clashed with Lietzau’s old boss, Haynes, independently described Lietzau as intellectually “flexible” and willing to faithfully implement the policies of his bosses. “The guy is smart, so he can figure out what the Supreme Court has said” about the due process rights to which detainees are entitled, but “it troubles me the guy can go from one end of spectrum to the other, arguably,” Romig said. “It’s very curious they would take somebody to run [policy on] detainees who was in the position he was in seven or eight years ago.”

An intense security review is under way as the Obama administration considers holding a trial in Washington for the Guantanamo Bay detainee suspected of planning a deadly Bali nightclub bombing, a move that would bring one of the world’s most notorious terrorism suspects to a courthouse just steps from the Capitol, officials said.

Whatever outrage gets manufactured over this, expect this PR firm to be involved.

Maj. Nidal Malik Hasan (USUHSy/ZUMA Press)

The new unit created by the Obama administration to interrogate the highest-value terrorism targets is unlikely to play a role in the case of the highest-profile new potential terrorist target in U.S. custody: Army Maj. Nidal Malik Hasan, the alleged Fort Hood shooter.

The director of the new interrogation unit, FBI Special Agent Andrew McCabe — who has not been previously identified in the press as the leader of the High-Value Detainee Interrogation Group (HIG) — referred all questions about the Hasan case to the FBI’s public affairs office and said he would not be able to elaborate on HIG operations beyond an August statement by Attorney General Eric Holder announcing the group’s creation. Still, it is unlikely that the HIG would interview Hasan. Dean Boyd, a spokesman for the Justice Department’s national security division, clarified that the new group is mandated to operate “overseas only.”

[Security1] The White House, Justice Department and intelligence community created the HIG as the result of a months-long review of interrogation policy to determine effective means of eliciting information from important captured terrorists or terrorist suspects without violating U.S. laws or jeopardizing potential prosecutions. As first reported by TWI in June, the new group placed elements from the FBI in charge of interrogations, stripping the CIA of the lead role, although the HIG itself is intended to include representatives of the FBI, CIA and Defense Department. Its architects describe its targets as the highest echelon of extremists: Hakimullah Mahsud, the leader of the Pakistani Taliban, for instance, or Osama bin Laden himself.

It is not clear whether Hasan ought to be considered a terrorist, and most evidence to date suggests he is better understood as a criminal suspect. An inquiry that began shortly after he allegedly shot and killed 14 people at Fort Hood on Nov. 7 has yet to determine any substantive links to extremist organizations, and reportedly indicates that he acted alone. An FBI spokeswoman, Denise Ballew, declined to comment, and referred all questions about Hasan to the U.S. Army’s Criminal Investigation Division, which is leading the Hasan inquiry with FBI support. Spokespeople for the Criminal Investigation Division did not return phone messages.

But an al-Qaeda affiliated cleric now based in Yemen, Anwar al-Awlaqi, has confirmed to The Washington Post that he communicated with Hasan, and Army psychiatrist, repeatedly before the shooting occurred. While Hasan is convalescing from wounds sustained when police officers stopped the attack, he might shed light on the circumstances that lead a very small minority of radicalized American Muslims to commit acts of extremism and even seek to connect with the broader terrorist infrastructure, which the counterterrorism community refers to as the “self-starter” or “lone-wolf” problem.

In a Senate hearing on Thursday, Sen. Joe Lieberman (I-Conn.) called the shooting a “homegrown terrorist attack,” a point not entirely accepted by his panel’s witnesses. Brian Jenkins, a terrorism expert with the Rand Corporation, testified that while “radicalization and recruitment to terrorism is occurring in the United States and is a security concern,” the small handful of examples of such behavior meant that American Muslim communities are “overwhelmingly unsympathetic to terrorist appeals,” a point Lieberman endorsed.

Individuals close to the HIG had mixed perspectives about whether it should play any role with Hasan. None agreed to speak for attribution, citing both the ongoing investigation into Hasan’s case and the secrecy surrounding the Obama administration’s new interrogation unit. “I can think of a lot of uses I could make of a HIG team while waiting for someone to be captured in Afghanistan,” said one such individual. “There’s no reason the HIG couldn’t be used domestically. There’s a ban on the CIA doing things in country, so they might just have to use FBI interrogators or interviewers. But aside from that I don’t see any other issues.”

A U.S. official involved with the establishment of the HIG said that it remained an open question whether Hasan is a “lone wolf with mental pathology” or someone who “latched onto extremist ideology and influence” like al-Awlaqi. As a result, there is insufficient evidentiary basis for involving the HIG, since it is unclear what actual information Hasan might have that could illuminate aspects of the broader terrorist puzzle. “I also have not seen anything that indicates known or suspected outside influence — other than firebrand al-Awlaqi’s call-to-arms, which is dangerous enough in itself — whether non-state actor or otherwise” is involved in the Hasan case, the official said.

A former U.S. counterterrorism official agreed: “The HIG is for high-value detainees and he’s not a high-vale detainee. He’s a criminal who did a heinous act.” The ex-official went on to say that if information emerged changing that picture, Army CID and FBI investigators have “a process to share information with behavioral analysis groups, [and] share with the HIG, to be careful to watch for other possible wackos.”

There are a number of investigations open into Hasan aside from the main CID-FBI probe. On Thursday, Defense Secretary Robert Gates announced the Pentagon would undertake its own review of the Hasan case to determine if its personnel missed warning signs leading to Hasan’s attack that might have prevented it. The intelligence community is reviewing what it knew about Hasan’s communications with al-Awlaqi or other extremists. Late last week, President Obama directed all relevant agencies to turn over information about those communications to his principle White House counterterrorism and homeland security adviser, John Brennan — who, coincidentally, is also the White House liaison with the HIG.

The military commissions created after 9/11 have had a vexed history. They provide for substantially less due process than military courts martial, which critics of the commissions contend are a preferable alternative for dealing with war criminals. One of them, a Navy lieutenant commander named Charlie Swift, litigated the point up to the Supreme Court in 2006 and won. Congress responded with the Military Commissions Act later that year — then-Senator Obama voted against it — but the Supreme Court struck down sections of that law in 2008, finding it to unreasonably restrict the right of habeas corpus. (Bonus fun fact: Justice Antonin Scalia, dissenting from the 5-4 ruling, warned that his colleagues’ decision would “almost certainly cause more Americans to be killed.” A year later, no one’s been killed because of the ruling.) At the National Archives in May, to the horror of civil libertarians, Obama confirmed that he indeed intended to revive the commissions process, and contended that he was neither a hypocrite nor a flip-flopper:

We will no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods.  We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay.  And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify.  These reforms, among others, will make our military commissions a more credible and effective means of administering justice …

Congress and the administration are exploring legislative pathways to enact those “reforms,” which remain vague and aspirational at the moment. And that’s what brings Jeh Johnson, the Pentagon’s general counsel; David Kris, the Justice Department’s national security chief; and Vice Adm. Bruce MacDonald, the Navy’s judge advocate general, before the Senate Armed Services Committee this morning. On June 26, the panel marked up the 2010 defense authorization bill, and included some language in it to restrict the use of “coerced testimony and hearsay evidence” in the commissions and ensure that convictions can “be upheld on appeal.” Expect the dialogue to expand on what this ought to mean in practice.

Hearing kicks off at 9:30 a.m.; to the blog I shall repair.

“I told you I’m not going to criticize my successor,” he said. “I’ll just tell you that there are people at Gitmo that will kill American people at a drop of a hat and I don’t believe that — persuasion isn’t going to work. Therapy isn’t going to cause terrorists to change their mind.”

Maybe next he can give some advice on rebuilding the Gulf Coast.

“The real rumor yesterday is whether our forces were reading Miranda rights to detainees and the answer to that is no,” Petraeus said today.

The Weekly Standard piece, published on the magazine’s Website yesterday, claimed that “the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee.”

The Republican in question was Rep. Mike Rogers of Michigan, who told the Standard:

The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters.

Rep. Pete Hoekstra (R-Mich.) then jumped into the fray:

When they mirandize a suspect, the first thing they do is warn them that they have the ‘right to remain silent.’ It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation–lawyering up.

I’m not sure where Rogers and co. got their information, but it seems safe to assume that Petraeus would be in the know here, and his denial is unambiguous.

Citizens for a Safe Alexandria founder Sara Raak (News8.net)

As a substantial portion of about 250 detainees being held at Guantanamo Bay’s prison facility prepare to face trial in the United States, the alarm that has defined the Washington debate over civilian trials for terrorism detainees has spilled across the Potomac River. A new organization has formed in Alexandria, Va., to advocate that the federal court there, which has already heard several prominent terrorism trials, is an undesired venue for trying detainees. The founder of the two-week-old Citizens for a Safe Alexandria, Sara Raak, appeared on local TV news Monday night to tell the Obama administration and lawmakers not to “put those of us in the Alexandria neighborhood at risk” by transfering detainees to the U.S. District Court for the Eastern District of Virginia.

Illustration by: Matt Mahurin

But while the newscaster interviewing Raak called her group a “grassroots” organization — and while Raak explained its origins by saying “we wanted to have an organization that kept the citizens of Alexandria aware of things that were happening at the federal, state or local government level” about dangers to the area — the group shows signs of being an “astroturf” effort, an attempt at making an issue pushed by powerful sponsors appear like a spontaneous outpouring of public will. Raak, who has a substantial pedigree in conservative politics and works for a Virginia communications firm, denies the charge.

Citizens for a Safe Alexandria’s Website has a number of features that raise the eyebrows of astroturf experts. Its domain is listed as owned by DomainsByProxy, which conceals the identity of Websites’ owners. The site doesn’t feature any contact information — just a box where visitors can submit a message to the group. “These vague things, the lack of contact information, they’re all red flags,” said Diane Farsetta, a senior researcher with the Center for Media and Democracy. Asked about the DomainsByProxy Web ownership, Farsetta said, “I don’t know why a grassroots organization would do that.”

The servers that host Citizens for a Safe Alexandria’s Website, however, reveal somewhat more. According to the server-information hub Whois.net, the organization’s Website is hosted on servers belonging to a firm called Democracy Data & Communications, whose address is on the same floor of the same building as the communications firm where Raak is employed, a company called OnPoint Advocacy — whose Website is on the same servers as well. Those servers host Websites for several business interests and advocacy groups on the right, including the Altria-owned Tobaccoissues.com and the now-defunct Freedom’s Watch, formerly run by Bush White House Press Secretary Ari Fleischer. For its part, OnPoint offers clients the ability to “generate influential contacts with Congress” through “grassroots” and “grasstops” media strategies, including “interactive, grassroots-focused online recruitment and communications programs that help expand and strengthen your existing advocate audiences.”

According Raak’s OnPoint biography, Citizens for a Safe Alexandria is far from her first involvement in activism. The company lists her conservative-movement bona fides:

Prior to joining OnPoint Advocacy, Sara worked on the Vote for Business program at the U.S. Chamber of Commerce, creating and managing grassroots advocacy programs for U.S. Chamber members. Earlier in her career, Sara directed the campaign of Presidential candidate Steve Forbes in the two largest counties in Iowa. Sara has also worked for Progress for America, where she played a key role in the nomination of Chief Justice John Roberts and Justice Samuel Alito to the U.S. Supreme Court, and served as outreach director for the Support Your Troops campaign. In addition, while working for the DCI Group, Sara directed state-based campaigns for large telecommunications companies.

Reached for comment at her OnPoint office on Wednesday afternoon, Raak said that Democracy Data & Communications — which she clarified is part of OnPoint — “was kind enough to offer” a Website for Citizens for a Safe Alexandria, but otherwise “has nothing to do” with the group, which she said also extended to OnPoint more broadly. She said “there’s no funding” for the group other than what she, her husband and two associates who are “other moms” in Alexandria put into the effort. The money they spend will go toward “put[ting] out some pamphlets” against Guantanamo detainees going to trial in Alexandria and distribute them in Old Town and at area flea markets. The contact-us section of the group’s Website bounces to Raak’s personal email account, though she said she may change that aspect of the Website if her group expands. News Channel 8 contacted her after seeing the organization on various social-networking media. Raak Tweeted about it on May 29, using the “Top Conservatives On Twitter” hashtag.

Additionally, the group may expand its focus to “rising crime” in Alexandria. “We kind of reflect the views of people in the neighborhoods of Alexandria. It’s a completely bipartisan group,” Raak said. “It’s not an astroturf” organization.

What’s actually the problem with trying Guantanamo detainees in Alexandria? Several terrorism trials have already been held at the district court without any damage to public safety, with convicted al-Qaeda conspirator Zacharias Moussaoui being perhaps the highest profile defendant. When that trial and others were held, Raak rejoindered, there were “road closures, snipers on rooftops, traffic congestion.” The trials placed the city “on the radar,” she said, and were hardly “the positive thing Alexandria wants to be on the radar for.” Other jurisdictions, Raak noted, have offered to take in Guantanamo detainees for trial. (Florence, Colo., home of a federal Supermax prison, is one of them) “They’ve already been here,” Raak said. “We’ve had our turn.”

On that point, Raak has support from Virginia politicians and national Republicans. Sen. Jim Webb (D-Va.) said last month that he opposes transferring Guantanamo detainees for Virginia to stand trial. Rep. Eric Cantor (R-Va.), a House GOP leader from the state, blasted Creigh Deeds, who won the Virginia Democratic gubernatorial primary on Tuesday, for not taking a clear position on the issue. And Senate GOP leader Mitch McConnell (R-Ky.) made similar arguments on the Senate floor last month that when Moussaoui was brought to the Alexandria courthouse for his trial, “traffic was stopped due to security concerns, a major inconvenience to locals and local businesses.” Raak’s group is well-positioned to echo that argument.

Research assistance for this piece provided by TWI managing editor Matthew DeLong.

The Associated Press reports that “two U.S. officials, who spoke on condition of anonymity, said the U.S. was prepared to give Palau up to $200 million in development, budget support and other assistance in return for accepting the Uighurs and as part of a mutual defense and cooperation treaty that is due to be renegotiated this year.”

In an interview with the BBC World Service this morning, Palau President Johnson Toribiong insisted that the only money he’d discussed with the U.S. government was “small support money” to aid in the Uighurs’ resettlement.

For a tiny island of less than 30,000 inhabitants, $200 million would surely be some helpful support. But Toribiong said that was not the motivation: “It’s an act of support for the United States in a request to release these people,” he told the BBC.

In a statement, Toribiong said his tiny country is “honoured and proud” to resettle the detainees, who have been found not to be “enemy combatants.”

Daniel Fried, the State Department’s Guantanamo troubleshooter, worked out a deal with Palau earlier today, according to The New York Times, to take an unspecified but substantial number of the 17 Uighurs at Guantanamo Bay, making other a-la-carte resettlement efforts easier:

One administration official said that if Palau agreed to take “a large chunk” of the 17, it would be easier to find homes for the rest, either in Australia, Germany or the United States. Australia and Germany already have Uighur populations, making those countries obvious candidates.

Australia recently agreed to review a request to accept some Uighurs, after twice rejecting from the United States. Germany has been reluctant to accept any detainees unless the United States takes some, too.

So there’s a silver lining for the demagogues: maybe one Uighur whom the Bush administration didn’t consider an enemy combatant will end up in Virginia. Keep some cash on hand for a quick ad buy.

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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

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.