The report finds that although many immigrants have not committed crimes, they’re held in secure facilities designed for criminals and often in far more restrictive conditions than necessary. They also often don’t have sufficient access to medical and legal assistance while in custody.

The reforms announced today by DHS Secretary Janet Napolitano and Immigration and Customs Enforcement Assistant Secretary John Morton involve primarily centralizing control of the detention facilities under ICE headquarters’ supervision; classifying immigrant detainees according to their risk level and housing them accordingly; improving detainees’ access to medical and legal services; and increasing supervision of the facilities by federal employees rather than by private contractors.

Longtime critics of the agency’s detention practices are not completely satisfied, however, noting that DHS’s proposals fail to include a way to ensure that the agency complies with improved standards, that immigrants aren’t unnecessarily locked up, and that innocent people aren’t harassed by local authorities empowered to enforce federal immigration law.

As Judy Rabinovitz, deputy director of the American Civil Liberties Union Immigrants’ Rights Project, put it in a statement released yesterday, “Meaningful reform of the system must focus not only on the conditions under which immigrants are being detained, but on why they are being detained in the first place — often for prolonged periods of time — when other forms of supervised release would be sufficient to address the government’s concerns, as well as the need for basic due process.”

Linton Joaquin, general counsel for the National Immigration Law Center, called the proposal “a step in the right direction” but said that “as long as these standards are not enforceable, the rights violations faced by the men and women in these systems will persist.”

Lawyers have been making that argument for years now, but the United States has insisted that the prisoners at Bagram have no right to challenge their detention in a U.S. court. The Obama administration recently appealed a federal court’s ruling that some of the prisoners do indeed have that right.

Now, notwithstanding any constitutional concerns, Maj. Gen. Doug Stone is reportedly recommending that the United States completely revamp its detention policy in Afghanistan, focusing on rehabilitating rather than simply imprisoning the detainees. He also acknowledges that the vast majority of the men held at Bagram were likely swept up in raids yet had not engaged in hostilities against the United States.

As I’ve written before, many of the prisoners at Bagram have been held there for six or seven years without charge or access to lawyers. Stone worries that imprisoning them without charge or an ability to defend themselves for years will turn them into hardened anti-American radicals.

Stone’s 700-page report is not yet available, but he has reportedly briefed senior U.S. officials on his findings, including the top commander in Afghanistan, Gen. Stanley McChrystal; Ambassador Richard Holbrooke, special envoy for Afghanistan and Pakistan; and Secretary of State Hillary Rodham Clinton. Stone earlier helped revamp the prison system in Iraq.

McChrystal is expected to address the issue of detention facilities in an assessment of Afghanistan due within the next few weeks.

In April, DHS responded to the Freedom of Information Act lawsuit with a “comprehensive” list of all deaths in detention, which totaled 90 people. Today, the agency said it realized it had overlooked 11 more. The government has now admitted to 104 deaths of immigrants in detention since 2003.

“Today’s announcement confirms our very worst fears,” said David Shapiro, staff attorney with the ACLU National Prison Project, in a statement. “For too long, the system of detaining immigration detainees has been devoid of transparency and accountability. This forces us to question even further whether there are still more deaths that somehow have gone unaccounted for.”

The Obama administration recently announced a new plan to improve the conditions of immigration detention, including strengthening federal oversight of the sprawling system that now houses about 32,000 detainees across 350 local jails, state prisons and contract facilities.

The Obama administration announced plans Thursday to overhaul the nation’s much-criticized immigration detention system by strengthening federal oversight and centralizing a 32,000-bed system now scattered throughout 350 local jails, state prisons and contract facilities, officials said.

The goal in three to five years is to redesign and begin rebuilding a system that houses immigration violators in fewer locations, closer to major cities with access to courts, attorneys and medical care, and under conditions that more consistently meet federal detention standards, said John Morton, director of Immigration and Customs Enforcement. [...]

The moves mark a repudiation of the immigration policies of President George W. Bush. Beginning after the 2001 terrorist attacks and accelerating as Washington took a “get-tough” approach to illegal immigration, ICE’s detention system exploded in a multibillion-dollar build-up, more than tripling in size over the past decade as the federal government geared up deportations.

Some of the specifics:

Morton will assign a federal manager to each of 23 of ICE’s largest detention centers. He is creating a new Office of Detention Policy and Planning, headed by Dora Schriro, a former state corrections official in Arizona and aide to Napolitano, to lead the overhaul. The office will work with two advisory boards including immigrant advocates focused on detention policies and health care, the official said.

ICE’s Office of Professional Responsibility will set up a detention oversight office that will report directly to Morton.

ICE also announced that it will stop sending families to the T. Don Hutto Residential Center near Austin, Tex., a 512-bed former state prison. The Bush administration highlighted the family detention facility as a symbol of its immigration crackdown efforts, but it became a lightning rod for litigation over the government’s treatment of children.

ICE will instead begin moving families to an 84-bed former nursing home in Pennsylvania, the Berks Family Shelter Care facility, and explore detention alternatives, Morton said.

Amnesty International has issued a statement praising the overhaul, but cautioned that it did not go far enough:

The 2009 detention reforms are a much-needed first step to address the myriad problems that have plagued the U.S. detention system for years.

Still, every day ICE attorneys make arbitrary decisions to detain immigrants who pose no flight risk, pose no threat to this country, and who should not be detained in the first place.  Just this week Amnesty International researchers met a refugee who remained in detention for more than two years, even though an immigration judge had twice decided that he cannot be deported. These scenarios are not anomalies, and ICE must address them as they continue to examine an immigration system that is broken, dysfunctional and needlessly tears apart families.

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.”

Writing over at Daily Kos, David Waldman, who attended the administration’s May 20 heart-to-heart with civil liberties groups, is similarly perplexed, and doesn’t recall anyone at that meeting making such a suggestion:

My memory of that meeting, of course, is by no means the definitive record. But given the specific focus of my own participation in that meeting, it seems rather unlikely that I would have missed anyone’s suggestion that such a policy be implemented by unilateral action of the President. In fact, my comments at the meeting began with the specific warning that any new policies put in place by this administration would undoubtedly survive it, only to be abused by some succeeding administration, no matter what President Obama’s intentions in implementing them. So while I see the point in arguing that an executive order can be more easily rescinded, it also seems obvious that it can be reissued just as easily. Or more likely, that a new and more draconian one can be issued in its place, with President Obama’s serving as precedent. I doubt that would have escaped notice or comment.

An administration official emailed Marc Ambinder to walk the executive order story back. Waldman doesn’t find the denial compelling.

–

You can follow TWI on Twitter and Facebook.

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.

President Barack Obama (WDCpix)

President Obama’s statement in his speech at the National Archives that he plans to retain the power to hold some as-yet-unnamed terror suspects indefinitely without charge or trial was quickly overshadowed (perhaps intentionally) by his announcement last week of his first Supreme Court justice nominee.

But the fact remains that despite his lofty promises to “uphold our most cherished values . . . in times of ease and in eras of upheaval,” the president is reserving an extraordinary and highly controversial right to hold suspected terror supporters indefinitely without trial based on his claim that they “pose a threat to the security of the United States.”

Illustration by: Matt Mahurin

While the details of any new detention scheme remain uncertain, Obama has already, through litigation conducted by the Justice Department, claimed broad detention power over alleged al-Qaeda operatives and supporters. Although the argument has been made so far in only a handful of habeas corpus cases regarding Guantanamo detainees, the government’s arguments provide the likely legal framework of any new preventive detention authority that the president may seek.

And by and large, judges — who have little guidance from the Supreme Court, which has never ruled on the matter — have been accepting the government’s broad claims to executive detention power. So far, the Supreme Court has only ruled in a much narrower case, Hamdi v. Rumsfeld, that the government can indefinitely detain combatants in a traditional international conflict, as was the war between the United States and Afghanistan when Yaser Hamdi was captured in 2002.

Given that the Supreme Court has never ruled on who can be detained in a non-traditional war such as the war against al-Qaeda — an organization, rather than a nation — judges have answered the question slightly differently in each case. In just the last couple of months, they have, for the most part, accepted the president’s claim that the Authorization for the Use of Military Force, or AUMF, passed by Congress in 2001, authorizes the president not only to wage war against the Taliban and al-Qaeda but to detain those group’s warriors for the war’s duration, even though it has no clear end. But they’ve differed with the government as to how to decide who is a warrior.

Based on the AUMF, the Obama administration has claimed “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.”

That’s an authority far beyond the traditional view of what international law allows in a non-international armed conflict – where the war is not between two recognized countries.

Although Obama didn’t lay out in his speech exactly how he’d use the “preventive detention” power he now claims, there’s been lots of speculation about its consequences.

Vincent Warren of the Center for Constitutional Rights told Rachel Maddow on MSNBC that Obama is “creating, essentially, an American Gulag.” CCR president Michael Ratner told the Huffington Post that preventive detention is “a road to hell,” and Will Bunch at The Philadelphia Daily News compared Obama’s approach to detaining “dangerous” people to what George Orwell called “Thought Police.”

Advocates are still waiting for a specific plan from President Obama, and many expect him to ask Congress for additional and more specific detention authorities this year. “There were troubling signs in what he said that he could consider some additional preventive detention, aside from the existing detention of Guantanamo prisoners that’s now the subject of ongoing habeas corpus cases,” said Jonathan Hafetz, an attorney with the ACLU’s national security project.

“Every sign is that the Obama administration believes there is existing authority to detain indefinitely outside of a traditional battlefield capture,” explained Hafetz. “That’s the position they’ve taken repeatedly.”

Washington, D.C. District Court Judge John Bates, ruling on one group of habeas corpus cases, accepted the government’s claim that the laws of war allow the president to detain al-Qaeda or Taliban fighters indefinitely but refused to agree that it can also detain those who “support” those groups. “The Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of ’support’ as a valid ground for detention.”

After all, supporting an organization deemed hostile to the United States sounds dangerously like criminalizing membership in a group – something the Supreme Court has said that the United States cannot do.

Still, citing Congress’s declaration in the AUMF, Bates concluded that the government can detain members of al-Qaeda and the Taliban, and members of “associated forces” or “co-belligerents.”

Similarly, D.C. District Judge Reggie Walton in April ruled that “mere sympathy for or association with an enemy organization does not render an individual a member of that enemy organization’s armed forces. Instead, the individual must have some sort of “structured” role in the “hierarchy” of the enemy force.” Although accepting the government’s claim it can hold those who provided “substantial support” to al-Qaeda, he interpreted that to mean only “individuals who were members of the “armed forces” of an enemy organization at the time of their initial detention.

This still leaves the question of how to prove who was a “member” of al-Qaeda or the Taliban. Unlike members of the U.S. Army, members of terrorist fighting forces don’t wear uniforms or carry cards declaring their membership.

The Obama administration has been claiming broad discretion to determine who is a member of a fighting force. But the courts are frequently not going along with it. In fact, in 25 out of 30 habeas corpus cases of Guantanamo detainees heard so far, the courts have ordered the prisoners released, concluding that the government has not presented enough evidence to continue holding them. (Few have actually been let go due to the danger of returning them to their home states, the administration’s inability to convince other countries to take them, and because the United States government so far has refused to accept them. Also, the courts have ruled that they can’t force the government to release any foreigners into the United States.)

For example, in the case of Ali Bin Ali Ahmed, detained since 2002 when he was a teenager, Judge Gladys Kessler rejected the government’s claim that it could use bits of evidence it had collected — what it called its “mosaic theory” — to argue that Ahmed was an enemy warrior. The evidence against Ahmed was that he was traveling in Afghanistan, which he denies; that he had a Taliban nickname, based on statements from informants who the judge deemed unreliable; that he stayed at a guesthouse where other suspected al-Qaeda or Taliban fighters have stayed, but where many non-militant impoverished students also stayed; and that other prisoners identified him as a fighter, although many of those prisoners were tortured and gave contradictory statements based on second and third-hand hearsay. Judge Kessler ruled that even combined into a “mosaic,” the evidence was “too weak and attenuated” establish that Ahmed was fighting with al-Qaeda or the Taliban.

“Once those pieces of the mosaic have been removed because of their unreliability, the Government is left with what is essentially a charge of guilt by association,” Kessler wrote.

Defense lawyers say this is precisely the sort of unsubstantiated evidence that the government has against their clients.

“You have no idea in how many cases the government relies on presence in a guest house as the main evidence,” said David Remes, a lawyer representing 16 Guantanamo detainees from Yemen, who is prohibited by the government from discussing the specific evidence against his clients.

“They’re just not letting the government get away with these very vaporous notions of what associates a person with al-Qaeda and the Taliban,” said Remes.

Yet not all defense lawyers or legal experts take such a sanguine view of the court decisions, which largely accepted the government’s right to indefinite detention in its indefinite war with al-Qaeda.

Glenn Greenwald in his blog at Salon put the issue starkly: “by all accounts, this ‘war’ will not be over for decades, if ever, which means — unlike for traditional POWs, who are released once the war is over — these prisoners are going to be in a cage not for a few years, but for decades, if not life.”

Deborah Pearlstein, a research scholar at Princeton’s Woodrow Wilson School and former director of the Law and Security Program at Human Rights First, although generally less critical of the administration’s position on detention, agrees that creates a constitutional problem.

“Until the Administration can identify – and Congress enacts – a provision detailing the circumstances under which any avowed al-Qaeda member would be released, it is difficult to see the current AUMF detention regime surviving constitutional scrutiny,” she wrote in a recent post on Opinio Juris.

“That is why the administration feels like it’s got to go back to Congress,” Pearlstein, who’s met with administration officials about the detention issue, told TWI last week. “So it’s not just litigating case by case.” So far, though, “it’s entirely unclear yet whether this will reach the Supreme Court on appeal from where it currently sits” in pending habeas cases, “or whether there will be another statute by the Obama administration” authorizing preventive detentions, which could ultimately be reviewed by the Supreme Court.

The idea of institutionalizing the broad executive authority to detain suspects believed to be “dangerous” yet not prosecutable, however, dismays many civil rights lawyers. Although Congress claimed the president had a similar authority during the Cold War when it passed the Subversive Activities Control Act, which allowed the United States to detain “dangerous, disloyal or subversive” persons in times of war, that provision in the law was never actually used, and Congress eventually repealed it in 1971.

The “war on terror”, many civil rights and defense lawyers worry, has emboldened the government to again seek such arguably unconstitutional powers that, this time, the president has already used and may now seek to expand.

“If they did try to get Congress to pass a law that institutionalized a preventive detention regime,” said Hafetz, that “would be a disaster. It would codify some of the worst aspects of the Bush administration.”

Although commending President Obama for promising to close the Guantanamo prison camp, Hafetz added: “it would be tragic if the legacy of Guantanamo is a system of preventive detention in the United States that we’ve never had in our history.”

CNN reports that U.S. District Court Judge Gerald Bruce Lee rejected CACI’s claims that the company was immune from liability for abuse, war crimes and conspiracy because it was under contract with the federal government.

The four Iraqi detainees in the case, represented by the Center for Constitutional Rights, alleged that interrogators on contract from CACI beat and abused them, and destroyed documents and videotapes of the interrogations to mislead officials about their tactics.

Although 11 U.S. soldiers who worked with CACI at Abu Ghraib were eventually court-martialed for their role in the abuses and implicated company workers in the crimes, none of the contractor’s workers have faced criminal charges.

CACI had claimed, as defense contractors often do, that it was not responsible for its workers’ actions because they were acting under orders of the U.S. military and that the courts lack authority to judge military actions, which are inherently political questions.

The judge disagreed.

“While it is true that the events at Abu Ghraib pose an embarrassment to this country, it is the misconduct alleged and not the litigation surrounding that misconduct that creates the embarrassment,” wrote Judge Lee. “This court finds that the only potential for embarrassment would be if the court declined to hear these claims on political questions grounds. Consequently, the court holds that plaintiffs’ claims pose no political question and are therefore justiciable.”

The four Abu Ghraib detainees were released between 2004 and 2008 and were never charged with any crimes.