Contacted in response to my story yesterday about the debate over national security courts, I spoke today to
the former Chief Counsel at the state department focused on detainee issues, who revealed an apparent schism between the State Dept on the one hand, and the Pentagon and executive on the other, when it comes to what to do with the Guantanamo detainees against whom they don’t have any solid evidence.
Vijay Padmanabhan, who left State in August and is now a Visiting Assistant Professor at Cardozo Law School, says that the government’s policy of defending the detention of all of these Guantanamo detainees now being litigated in habeas cases in federal courts is just bad policy. Although the state department supposedly gets to weigh in on such things, it seems that the position of Deputy Secretary of Defense Gordon England, who ultimately decides DOD’s position, has been winning out. (Padmanabhan emphasized that he couldn’t tell me what advice he’d given his client, the State Dept, when he was there, but you could pretty much guess from the views he’s espousing today.)
The case of the five Algerians picked up in Bosnia and ordered freed yesterday by a federal district court is a particularly egregious example of the kind of case the US government ought not to be fighting, Padmanabhan said. “They were never alleged to have gone to Afghanistan or participated in the conflict there in any way.”
Initially, the US said these men had planned to blow up the US embassy in Bosnia. When Bosnian courts decided that there was insufficient evidence to detain them, the US government whisked them off to Guantanamo Bay. Eventually, the US just stopped claiming that they were involved in any plot to blow up a US embassy. But they kept holding them.
“So they came up with this post hoc rationalization, which was that they were intending to go to Afghanistan sometime in the future,” says Padmanabhan. The evidence supporting that was what Judge Leon yesterday called “a thin reed” and totally insufficient to support their continued detention.
“My bigger picture view of these cases is that the government should really be focusing on defending the detentions of the individuals who are the most serious threats to national security that we face. Going to court repeatedly with weak or nonexistent cases against detainees results in a growing public sense that there’s nobody being detained at Guantanamo that should be detained,” he said. “It undermines the world’s understanding of why we hold anybody there at all.”
So why is the US government doing this?
“I think the defense department in particular is rudderless,” said Padmanabhan. “It lacks any real strategic sense with respect to the long-term detention picture. They have never thought, ‘what happens if we lose many of these court cases? What are the long term strategic consequences?’ They just keep fighting them, and then if something bad happens they can blame the court.”
Although the state department is supposed to have some say on these issues, in particular regarding how ongoing litigation affects US public diplomacy, voices like this former senior state department lawyer’s have obviously been drowned out by DOD, and ultimately by the national security council and the president.
We know already about the conflicts between the State Dept and the Pentagon on conduct of the Iraq war; now it seems they’re at odds over how to deal with the hundreds of detainees from the “war on terror” as well.
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