“There is much debate about how broadly both the Bush and Obama administrations have interpreted [the Authorization to Use Military Force], a concern that I share, but this instance is not one of those cases,” Gude says. “It cannot plausibly be argued that Awlaki, who is mentioned repeatedly in the 9/11 Commission report as having assisted the 9/11 hijackers, is not a person who aided the 9/11 attacks.”

But the evidence the 9/11 Commission report presents about Awlaki is far more fragmentary than Gude suggests. Awlaki’s possible role in the attacks is discussed in chapter 7 of the report, “The Attack Looms.” Basically, when hijackers Nawaf al-Hazmi and Khalid al-Mihdhar arrived in San Diego in mid-2000, they attended a mosque the American citizen Awlaki ministered at. This is what the commission says on page 221 of the first-edition text:

Another potentially significant San Diego contact for Hazmi and Mihdhar was Anwar Aulaqi, an imam at the Rabat mosque. Born in New Mexico and thus a U.S. citizen, Aulaqi grew up in Yemen and studied in the United States on a Yemeni government scholarship. We do not know how or when Hazmi and Mihdhar first met Aulaqi. The operatives may even have met or at least talked to him the same day they first moved to San Diego. Hazmi and Mihdar reportedly respected Aulaqi as a religious figure and developed a close relationship with him.

When interviewed after 9/11, Aulaqi said he did not recognize Hazmi’s name but did identify his picture. Although Aulaqi admitted meeting with Hazmi several times, he claimed not to remember any specifics of what they discussed. He described Hazmi as a soft-spoken Saudi student who used to appear at the mosque with a companion but who did not have a large circle of friends.

Aulaqi left San Diego in mid-2000, and by early 2001 had relocated to Virginia. As we will discuss later, Hazmi eventually showed up at Aulai’s mosque in Virginia, an appearance that may not have been coincidental. We have been unable to learn enough about Aulaqi’s relationship with Hazmi and Mihdha to reach a conclusion.

Both future 9/11 hijackers made their way to the Dar al Hijra mosque in Falls Church, where Awlaki had again taken up religious service. Page 229:

Aulaqi had moved to Virginia in January 2001. He remembers Hazmi from San Diego but has denied having any contact with Hazmi or [fellow hijacker Hani] Hanjour in Virginia.

At the Dar al Hijra mosque, Hazmi and Hanjour met a Jordanian named Eyad al Rababah. Rababah says he had gone to the mosque to speak to the imam, Aulaqi, about finding work. At the conclusion of services, which normally had 400 to 500 attendees, Rababah says he happened to meet Hazmi and Hanjour. They were looking for an apartment; Rababah referred them to a friend who had one to rent. Hazmi and Hanjour moved into the apartment, which was in Alexandria.

Some FBI investigators doubt Rababah’s story. Some agents suspect that Aulaqi may have tasked Rababah to help Hazmi and Hanjour. We share that suspicion, given the remarkable coincidence of Aulaqi’s prior relationship with Hazmi. As noted above, the Commission was unable to locate and interview Aulaqi.

The pattern of behavior is doubtlessly suspicious and the coincidence cries out for further investigation. But it’s not the same as tying Awlaqi to the 9/11 plot. In a footnote, the 9/11 Commission reveals that Awlaqi had come under FBI investigation in 1999 and 2000 after it learned the imam “may have been contacted by a possible procurement agent for Bin Laden.” It determined that he knew anti-Israel extremists, including some with ties to Hamas. But “none of this information was considered strong enough to support a criminal prosecution.”

Awlaki, we now know, is himself an extremist, and possibly tied to al-Qaeda in Yemen or beyond. But is this the level of connection to the 9/11 attack that can justify the execution of an American citizen without due process, according to the 2001 Congressional authorization? This is what that authorization empowers:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Even “aided” is a stretch in Awlaki’s case. The 9/11 Commission suspected it, and details the basis for reasonable suspicion. But it lacked the basis to reach any such conclusion.

The group put out a web video demanding that Holder name the other Justice Department lawyers who had previously represented terror detainees or worked on similar issues for groups that opposed the Bush administration’s near-limitless assumption of executive power. “Whose values do they share?,” a voice asks ominously. “Americans have a right to know the identity of the al-Qaeda Seven.” The ad echoed [National Review writer Andy] McCarthy’s references to the “al Qaeda bar” from months earlier.

“This is exactly what Joe McCarthy did,” said Gude. “Not kind of like McCarthyism, this is exactly McCarthyism.”

That’s Ken Gude of the Center for American Progress. Yesterday, retired Air Force Col. Morris Davis, a former chief prosecutor of the military commissions, wondered whether these people would call John Adams a British symp for defending the perpetrators of the Boston Massacre.

Nevertheless, the Los Angeles Times runs a story reporting this exactly the way the right wants it reported, with credulous intimations that there’s something “hidden” about the Justice Department lawyers. “It’s time for these policies to meet the light of day — and for the public to get the answers they deserve,” Sen. Jeff Sessions (R-Ala.) told the paper’s Richard Serrano, who didn’t ask Sessions whether he had a list of the Justice Department’s al-Qaeda sympathizers in his jacket pocket. This is a constant theme on the right. In 2006, Rep. Peter Hoekstra (R-Mich.) told me that there were unnamed CIA officials who harbored sympathy with al-Qaeda. He was chairman of the House intelligence committee at the time.

The evidence from recent terrorism investigations proves Judge Mukasey right that access to lawyers does not interfere with interrogating suspected terrorists. Nothing prohibits interrogations to continue after a suspect is given access to an attorney. In fact, terrorist suspects have given what U.S. officials call “an intelligence goldmine” after meeting with attorneys.

Brent Vinas, an American convert to Islam captured in Pakistan in 2008 and turned over to the FBI, has proven to be one of the U.S. government’s most valuable sources of information about Al Qaeda. From the moment Vinas was in American custody he had all the access to attorneys and other rights afforded criminal suspects, and he still produced what one intelligence official called a “treasure trove” of information about Al Qaeda. In more than 100 interviews with counterterrorism officials, Vinas provided information that led to a Predator drone strike that killed a suspected militant, and his information has allowed counterterrorism officials “to peer deep inside the inner workings of Al Qaeda.”

David Headly—also known as Daood Gilani—was arrested in Chicago and charged in connection with the 2008 Mumbai attack that left more than 150 people dead. Headly pleaded not guilty, but he is cooperating with prosecutors and helped U.S. officials uncover a plan by Lashkar-e-Taibi to unleash a similar attack in Copenhagen, Denmark, targeting the newspaper that printed cartoons of the prophet Mohammed. Meeting with his attorney has not prevented him from providing intelligence information that disrupted at least one terrorist plot.

After all, detainees give up information in plea deals.

A related point made in a recent post of mine: reading a detainee his Miranda rights doesn’t stop interrogations. It just means information used from those interrogations can’t be used in court.

Afghan officials have agreed to take over the running of the US military prison at Bagram, which currently houses about 750 inmates, including around 30 foreign nationals.

A so-called Memorandum of Understanding signed on Saturday could see the controversial facility handed over to Afghan control within months, officials said.

The plan appears to be to transition Bagram first to the Afghan defense ministry and then to the justice ministry. But the shift also augurs something profound: it means that Bagram can’t serve as neo-Guantanamo, as some have suggested. Daphne Eviatar reported that the influential Center for American Progress floated a proposal in November to send Guantanamo detainees to Bagram as an interim step to closing the Cuban prison. But handing Bagram over to Afghan control effectively forecloses on that option.

Attorney General Eric Holder (WDCpix)

When Attorney General Eric Holder announced earlier this month that the suspected plotters of the Sept. 11 terrorist attacks would be tried in civilian court, he also promised to seek the death penalty for all of them. But the heated debate that followed over the supposed dangers of trying “the worst of the worst” in a New York federal court has largely eclipsed the question of whether the death penalty is actually the best punishment for convicted terrorists.

[Law1]Some of the men have not only proudly claimed responsibility for the attacks, but also said that they want to be executed and martyred. Setting aside any moral concerns about the ultimate punishment, it’s not clear in this case whether the death penalty would act as a deterrence or an incitement to other potential terrorists. When it comes to jihadists who willingly risk or relinquish their own lives for their cause, is the death penalty really such a good idea?

“It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” wrote Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, in a report released earlier this month. “Al Qaeda will exploit an execution by the U.S. government as a significant propaganda victory, no matter how fair and legitimate the trial,” he added in an article in The Guardian.

Even former Attorney General Michael Mukasey said last year that he hoped that these men would not be executed. Asked by students at the London School of Economics in 2008 whether he thought the Sept. 11 defendants, who were then facing military commission trials, should get the death penalty, he said: “I kind of hope they don’t get it. Because many of them want to be martyrs and it’s kind of like the conversation, you know, between the sadist and the masochist. The masochist says ‘Hit me’ and the sadist says ‘No.’ So I am kind of hoping they don’t get it.”

Other legal experts agree, but for different reasons. “I think the fact that the defendants want to be executed shouldn’t count either way,” said Michael Dorf, a law professor at Cornell University, who advocated against the death penalty for these suspects when they faced military commission trials last year. “However, I do think it is legitimate for the government to worry about the possible counter-productivity of the death penalty here. That is, if the government had concluded that executing [Khalid Shaikh Mohammed], et al were likely to substantially aid Al Qaeda in recruiting, a decision not to seek the death penalty could be based in part on that worry.” According to Dorf, executing the men not only wouldn’t deter other terrorists from committing similar crimes, but could even encourage them.

This debate comes at a difficult time for President Obama and his attorney general. The president has promised to close the Guantanamo Bay detention center by Jan. 22, but faces huge challenges. Those range from where to try the suspected terrorists housed there to where to send those that have been cleared for release but can’t be sent home due to potential persecution or political instability. Republicans, citing the dangers to the United States of trying terrorists on our soil and claiming the terrorists don’t deserve the rights accorded to criminal defendants in federal court, have pushed to try most terror suspects in military commissions. Many Democrats, prominent legal experts and former military leaders, on the other hand, have argued that civilian federal courts are better-equipped to handle such cases and would confer a legitimacy on the trials that is critical to restoring the United States’ reputation around the world. In deciding to try the Sept. 11 suspects in federal court, then, the Obama administration is eager to look like it’s still being tough on terrorism and its perpetrators. That may be influencing the decision to seek the death penalty.

Other countries have faced similar debates in the face of repeated terrorist attacks, and ultimately decided that executing terrorists was counterproductive. Although the death penalty is now outlawed in all European Union countries, when the U.K. House of Commons debated whether to repeal the death penalty in Northern Ireland in 1973, there was widespread agreement that executing terrorists, who often wanted to martyr themselves, would only lead to increased violence and terrorism.

The question raises a classic conundrum for criminal law theorists. Punishment in the American justice system is supposed to punish the criminal in a way that seems proportionate to the crime and also deter others from committing similar acts. But if suicide bombers are blowing themselves up for the cause, how much of a deterrent is the death penalty to these sorts of terrorists?

“It doesn’t make sense as a deterrent,” said Columbia Law Professor Jeffrey Fagan in an email. “Deterrence assumes a rational actor who perceives that the punishment costs exceed the benefits of the crime, and who will not act against his or her own self-interest. in this case, the punishment is no match for either the rewards of striking a significant blow at ‘The Great Satan’ or the rewards of martyrdom.”

Richard Dieter, Executive Director of the Death Penalty Information Center, agrees. “Terrorists expect to die or want to die,” he said. “There’s a chance that the death penalty feeds into that.” After the federal death penalty in the U.S. was expanded in 1994 to include terrorism, Dieter notes, “the very next year Timothy McVeigh blows up the Oklahoma federal building. So I don’t think anybody believes it’s much of a deterrent. It might even be an attractor.”

Of course, another purpose of criminal punishment is retribution. Under that theory, the criminal is supposed to get his just desserts –– an eye for an eye, in biblical terms. “For retribution, it doesn’t matter what his preferences are,” says Claire Finkelstein, professor of law and philosophy at the University of Pennsylvania Law School.

“Simply put, these monsters who specifically target civilians have no right to live,” wrote Rabbi Stuart Weiss, director of the Jewish Outreach Center of Ra’anana,in a recent op-ed in the Jerusalem Post, arguing that Israel, which has abolished the death penalty for almost all crimes, should reinstate it for terrorists. “They have forfeited the most basic human privilege by virtue of their crimes; any punishment save death is too good for them and is an obscene insult to the grieving victims of terror.”

It’s the classic notion of retribution. “The idea is that you return to the defendant what he has inflicted on the victim,” said Finkelstein. She herself doesn’t really think that’s possible, though. “There is no way to kill this man nearly 3,000 times, or force him to experience what his victims suffered as they tried to escape the twin towers,” she said.
Still, logical and even strategic considerations are often not what guides such decisions.

“There’s a lot of politics involved,” says Dieter. The Obama administration’s latest decisions on closing Guantanamo and trying terror suspects in federal court has opened it up to a rash of criticism from conservatives . “Maybe it’s part of this total picture that we’re closing this prison down there but that doesn’t mean we’re going to be soft on them,” said Dieter. “Once you open up the whole political world, the calculations are different.”

Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

My emphasis. As Marc writes, that sounds a lot like the administration will just simply hold them in legal limbo, as per the so-called “Fifth Category” of detentions outlined by President Obama in his May speech at the National Archives. Adam Serwer wrote a great piece on how that category of detainees has roiled the civil liberties community.

Now, the Obama administration has subsequently stated that it’s not going to seek any additional authority from Congress for such preventive detention. But that doesn’t solve the problem of what becomes of those detainees. Will the courts ultimately decide that the administration doesn’t, in fact, have the power to hold them without charge? And where will they be held if Guantanamo is to close? After all, if they’re moved into the United States, the courts will almost certainly exercise jurisdiction over them.

A possible clue comes in a recent and widely discussed report from Ken Gude of the well-connected Center for American Progress. As my colleague Daphne Eviatar reported, Gude proposed simply sending the detainees to Bagram Air Field in Afghanistan — which would, in effect, create Neo-Guantanamo. There has been a lot of discussion over whether Gude was floating a trial balloon for the administration. We may soon see.

Update: Adam corrects me on what Gude was actually proposing:

Spencer Ackerman speculates that these detainees might be sent to Bagram. That was the Bush administration’s solution for avoiding judicial scrutiny of detention, but that approach is distinct from what Ken Gude and the Center for American Progress are proposing. The CAP proposal is to send those detainees who were captured in the Afghanistan-Pakistan area, and who have lost the first round of their habeas appeals, back to Bagram. Sending “fifth category” detainees captured in third countries would jeopardize the government’s position in appealing the judicial ruling that granted detainees captured in third countries and held at Bagram habeas rights.

Apologies to Ken; I appreciate the correction.

As I reported a few months ago, because the U.S. has declared war against Al Qaeda–and KSM is quite obviously a member of Al Qaeda–they can claim legal authority to detain him even post-acquittal, until the end of hostilities, under the authority granted by the Authorization to Use Military Force. The Bush administration considered doing this briefly with Osama bin Laden‘s limo driver, Salim Hamdan–but because it makes a mockery of the American system of justice, they decided against it. But the options don’t actually end there.

“They have three sources of authority that would allow him to detain him, one of which is the AUMF, because it directly cites the 9/11 attacks in its language–the people who planned the 9/11 attacks are combatants, and are detainable under the AUMF,” Ken Gude, a human rights expert at the Center for American Progress explains. “Under the .000001 chance that they are acquitted, they will have that authority to detain them,” Gude says.

I’m awaiting all the liberty-loving Tea Partiers to start ranting about Obama Show Trials any minute now.

That’s just one of several sure-to-be-controversial recommendations the group makes in a new report released Tuesday.

CAP also wants the president to prosecute the suspected 9/11 conspirators in civilian federal courts, contrary to the calls of some lawmakers, like Senators Graham, Lieberman, McCain and others who insisted they be tried only in military commissions. (Their efforts to push through legislation to that effect failed last week.)

And, despite the fact that these five men are accused of the largest mass-murder ever on U.S. soil, CAP wants the president not to seek the death penalty for any of them. “It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” writes Ken Gude, Associate Director of the International Rights and Responsibility Program and author of the new report.

As for the use of the military commissions that the president just revived by signing new legislation last week, those “remain tainted by Bush-era mistakes, and must be limited—if used at all—to battlefield crimes in order to gain a measure of legitimacy.”

Gude also recommends limiting military detention to actual enemy fighters captured in combat zones. Right now, the administration claims the right to seize and detain indefinitely suspected al-Qaeda or Taliban terrorists found anywhere in the world.

Those concerned that the Bagram detention center in Afghanistan is becoming “Obama’s Gitmo,” as it’s increasingly called, may not appreciate Gude’s final recommendation. While Gude would imprison anyone convicted in U.S. criminal courts in U.S. prisons, as we usually do, he recommends transferring anyone now at Guantanamo who will remain in military custody — either to be tried by a military commission or simply to be detained indefinitely — to the U.S.-run prison at Bagram.

While that might sound logical, particularly given the strong political objections to transferring Guantanamo detainees to the United States, civil and human rights advocates are likely to point out that it would not only allow the Obama administration to continue — indefinitely — the troubling practice of indefinite detention, but would place those indefinitely detained even further beyond the reach of U.S. courts than they were at Guantanamo. After all, the Supreme Court ruled that Guantanamo detainees have the right to challenge their detention through a writ of habeas corpus in federal courts; most Bagram detainees, on the other hand, do not have that right.

Advocates such as Human Rights First, which issued a new, highly critical report on the detention and trials of detainees in Afghanistan this month, have complained that the military procedures there don’t afford prisoners a meaningful way to challenge their detention. The report, based on interviews conducted in April, found that prisoners were often not informed of the specific reasons for their detention, were not provided with lawyers to represent them, and were not allowed to bring witnesses to speak on their behalf or challenge the evidence presented against them.

New detention review procedures implemented in September could solve some of those problems, although detainees still don’t get legal representation. In Gude’s view, while the administration “can and should do more,” Obama officials “are making good progress on procedures at Bagram.”  Ultimately, he says, the U.S. detention system there has to be better connected to Afghan law.

Whether we ought to be placing our hopes for due process and rule of law in the Afghan legal system, which suffers from plenty of its own serious problems, is a whole other question.

President Barack Obama (WDCpix)

Although the Obama administration’s much-anticipated new policy on the use of the so-called “state secrets” privilege, announced this morning, has drawn some praise, civil liberties lawyers and other critics of the use of the privilege don’t think it solves the problem.

The state secrets privilege allows the government to conceal certain evidence in a court case that, if disclosed, would endanger national security by revealing “state secrets”. But who gets to decide what is a state secret and whether it will actually endanger national security has long been a point of contention. The Department of Justice, first under President Bush and then under President Obama, has invoked the privilege to ask courts to dismiss every single legal case that has come before them seeking compensation for torture or warrantless wiretapping by the government. That’s led critics to charge that the administration is trying to use the evidentiary privilege not to protect national security, but to conceal government wrongdoing and avoid embarrassment, or worse.

Today’s announcement says the government will use the privilege more sparingly, and requires the attorney general himself to sign off on its use. But the provision does not bar the government from using the privilege to try to dismiss cases alleging government wrongdoing.

“They don’t anywhere say, ‘we will not seek dismissal on state secrets grounds at the outset’” of a case, said Ben Wizner, a staff attorney at the American Civil Liberties Union who’s come up against the privilege while representing victims of torture. “They say we’re going to make an effort to apply it as narrowly as possible. But that doesn’t change what they’ve been doing all along.”

What the Department of Justice has been doing all along is essentially what the Obama administration has done in one case Wizner’s working on, in which a victim of torture due to the CIA’s “extraordinary rendition” program sued Jeppesen Dataplan, a subsidiary of Boeing, claiming the company was partly responsible for helping transport CIA prisoners to other countries to be tortured. The government claimed that allowing the case to go forward would reveal state secrets and endanger national security, and asked the court to dismiss it. Eventually, the ACLU won the right to proceed with the litigation, but the Obama administration in June asked the court of appeals to reconsider and dismiss the case.

“Any new policy will be an empty gesture if the administration continues to assert the same expansive theory of state secrets to dismiss cases brought by torture victims,” Wizner said Wednesday. “At the same time that they are rolling out this new policy with fanfare, they are asking the Ninth Circuit [Court of Appeals] to reverse its own decision and rehear the case because of state secrets.”

The Jeppesen case is one of several where the Obama administration has made the same expansive arguments that entire cases should be dismissed to protect state secrets, rather than simply excluding the particular piece of evidence that could actually endanger national security.

The real problem, say critics, is that the Obama administration is trying to use its new policy as a way to prevent the passage of legislation that will clarify the role of the executive versus the role of the courts.

“The Bush administration’s approach to state secrets was wrong-headed, causing significant public distrust and potentially shielding government wrongdoing and embarrassing mistakes behind a questionable legal doctrine,” said Sen. Russ Feingold (D-Wis.) in a statement released after the Justice Department’s announcement today. Feingold is a cosponsor of the proposed State Secrets Protection Act, which would provide guidance to federal courts considering cases where the government has asserted the state secrets privilege. “While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’ ”

Or as Wizner put it, “this is voluntary executive self-policing.” Legislation would “bind not just this president but the next one. That’s critical.”

What’s more, the new policy doesn’t really address the role of judges in cases where the privilege is invoked. The proposed legislation, on the other hand, “says courts cannot dismiss cases simply on the basis that the government claims the case involves state secrets. The legislation says courts are required to look at the underlying evidence” and decide for themselves.  In many of these cases that have come up so far, it’s the government agency being sued — such as the CIA — that submits a statement to the court saying that the evidence that it committed a crime would endanger national security. “The court shouldn’t be able to rely just on an affidavit filed by the perpetrator,” said Wizner.

Under the proposed State Secrets Protection Act, if a court looks at the evidence and determines that some piece of it really does constitute a state secret — say, the identity of a CIA agent — then that evidence would be removed from the case. But before making that determination, the judge would have to explore every alternative, to see if other tools, such as protective orders, could be used to protect the evidence but still allow it to be used. If carefully and narrowly applied, says Wizner, only particular pieces of evidence that are not important to the litigation would have to be excluded. “No one’s saying we can litigate the identity of covert agents in civil cases,” says Wizner.

Ken Gude, Associate Director of the International Rights and Responsibility Program at the progressive Center for American Progress, expressed similar concerns about the Obama administration’s new state secrets policy. “My main concern is that the government should not be able to have a whole case dismissed simply by asserting a state secrets claim,” he said in an e-mail on Wednesday. “There may be instances when it’s simply not possible to proceed without certain evidence, but that should result from a subsequent decision after the plaintiffs have had a chance to plead their case without the material.”

That seemed to be what President Obama supported, too, when he first spoke about the state secrets privilege back in April. At an April 29 press conference, he called the state secrets doctrine “overbroad.” He went on to say that “searching for ways to redact, to carve out certain cases, to see what can be done, so that a judge in chambers can review information, without it being an open court — you know, there should be some additional tools, so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that, as we speak.”
Today’s announcement is the policy that resulted from that process. But critics aren’t convinced it that it will actually accomplish what the president has promised.

As Feingold said today: “Independent court review of the government’s use of the state secrets privilege is essential. I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”

–

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US Attorney General Michael Mukasey (WDCPix)

It’s been exactly one year since then-Attorney General Michael Mukasey proposed in a speech at the American Enterprise Institute that Congress pass legislation declaring a new, expanded war with al-Qaeda and the Taliban — thereby granting the president the authority to detain indefinitely members of those groups anywhere in the world where they’re found.

That proposal from a lame-duck Attorney General never got very far with the Democratic-controlled Congress. But a year later, the country is still debating that exact same detention authority. And news reports suggest that President Obama may seek precisely the same sort of authority that Mukasey was talking about.

Illustration by: Matt Mahurin

Although the Detainee Policy Task Force yesterday announced it was taking a six-month extension on its deadline to formulate the policy, reports from National Public Radio, The Washington Post and Politico have all quoted anonymous Obama administration officials saying the president intends to create or continue some sort of indefinite detention system for suspected terrorists associated with al-Qaeda or the Taliban, whether through new legislation or mere “consultation” with Congress.

“There is no intent in the administration to rely on anything other than congressional authority,” one senior administration official reportedly told The Washington Post.

Whether that authority would take the form of an entirely new system of administrative detention outside the authority of the laws of war, as some have proposed, or whether it would rely either on the existing Authorization for the Use of Military Force, or seek a new authorization, is unclear.  The anonymous officials aren’t explaining (or don’t yet know) how the administration intends to go about solidifying its legal authority to indefinitely detain suspects without charge or trial arrested around the world.

The question arises because the Supreme Court, in Hamdi v. Rumsfeld, affirmed that the president does have authority to detain combatants arrested on the battlefield in a conventional war, which the United States was engaged in with Afghanistan at the time. Since then, lower federal courts have ruled that the United States can detain combatants who are members of al-Qaeda or the Taliban. But it’s not clear if that authority would reach countries where there is no active combat — or if the authority described in the Hamdi decision  at some point runs out.

In attempting to answer that question a year ago today, Michael Mukasey, in a speech delivered to the American Enterprise Institute, said that Congress should:

acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans—soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

Today, Obama — or at least members of his administration — appear to want something very similar.

“It’s hard to see how they would end up writing anything much different from what Mukasey proposed a year ago,” said Chris Anders, senior legislative counsel for the American Civil Liberties Union in Washington. “And that was dead on arrival.” Although the issue was raised at congressional hearings, proposed legislation never received enough support even to get to the floor for a vote.

Last summer, Anders described the idea on the ACLU’s blog as “a multi-part plan to violate the Constitution” that would “give a president worldwide power to declare anyone a terrorist and hold the person forever – without ever charging anyone with a crime.”

Although it’s possible that Obama would have more sway with Congress than Bush did, the leaders of the judiciary committees in both the House and Senate have publicly opposed a preventive detention plan that would detain suspected terrorists that the president deems “dangerous” without charge or trial; the chairmen of the House and Senate Armed Services Committees have likewise expressed reluctance.

So could Obama really get new authorization for preventive detention? Or will he try to rely on the old one, and issue an executive order or presidential memorandum clarifying (or extending) its scope? One reason he might want to seek new authorization is that, as David Kris, assistant attorney general for the Justice Department’s National Security Division,  recently testified before the Senate Armed Services Committee, the authority the Supreme Court acknowledged in Hamdi could eventually “run out.” After all, the laws of war only authorize detention for the duration of active hostilities.

Anders said that in his conversations with lawmakers on the Hill, he hasn’t heard of any proposed legislation being circulated. “No one I’ve come across so far has seen or heard anything from the administration about an indefinite detention proposal,” he said.

In an e-mail, Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, cautioned that new legislation could lead to far broader authority for indefinite detention than even Obama envisions.

“For me, the answer to this question decides the whole ball game — if they go to Congress, what will inevitably emerge is a broad preventive detention system regardless of what the Obama administration wants. If they rely on AUMF authority, then it can be much more narrow.”