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Detention and Torture Cases Demand Fast Action from Obama DoJ

As Adam Liptak wrote in The New York Times on Saturday, the President-elect Barack Obama’s Justice Department is going to have to quickly figure out what positions it will take in some thorny legal cases involving the indefinite detention and torture of “war on terror” detainees.

The Al-Marri case Liptak writes about, and which I’ve been covering for TWI, presents probably the starkest instance of the Bush administration’s extraordinary claims of executive power: it insists that the president has the right to authorize the seizure and indefinite detention, without charge, of a lawful U.S. resident in a prison on American soil.

According to the Bush administration, Ali al-Marri — a father of five who was a 28-year-old masters student in Peoria, Ill. when he was arrested for credit card fraud, making false statements on a bank application and identity theft in December 2001 — is a dangerous agent of Al Qaeda. While those charges were pending, the Justice Department swooped in and decided that al-Marri could no longer speak to a lawyer because President George W. Bush deemed him an “enemy combatant.” No proof of the charges were necessary, Bush administration lawyers insisted, nor did they need to justify in any way the government’s detention of al-Marri without charge or trial for the last seven years in a Navy brig in South Carolina.

Al-Marri’s lawyers insist otherwise, and the case is now set to be heard by the Supreme Court in the spring. But as I noted in a previous post, it’s not clear that the Obama administration will let the case get that far. It seems hard to imagine that Obama’s Justice Department under Attorney General-designee Eric Holder, who has made strong statements criticizing Bush’s anti-terror policies in the past, would maintain the department’s current position that the president can indefinitely detain a lawful U.S. resident without charge on U.S. soil. Still, neither Obama nor Holder has ever specifically weighed in on this issue, as far as I can tell. (Liptak notes that Obama has come out against detaining U.S. citizens indefinitely, but al-Marri isn’t an American citizen.)

To avoid having to take a position either way, the new Justice Department could simply transfer al-Marri to a U.S. federal prison and charge him under American law, which would be the most reasonable course. That some of the evidence against him may have been tainted by torture, as Liptak points out, doesn’t mean it ought to be the basis for holding him forever without a trial — not only because that would be illegal, but because we know that evidence obtained under torture is notoriously unreliable.

In any event, one of the most important decisions the Obama administration will have to make rather quickly is whether and where to try detainees of the Bush administration’s “war on terror” — whether in the United States, Guantanamo or elsewhere. As I’ve noted before, the debate over whether to create a new national security court or some other venue instead of using the federal court system already in existence is causing considerable controversy and will have major political and legal consequences. Obama may well decide to test out the idea of shifting these cases to federal court by starting with the al-Marri case.

In the meantime, Liptak notes at the end of his piece one new development in the Rasul torture damages case. (This is the case of the four British detainees held at Gitmo and allegedly tortured and humiliated there, until they were released after two years without charge. They are suing former Secretary of Defense Donald Rumsfeld, former Joint Chiefs Chairman Gen. Richard Myers and others.) The court of appeals has pushed back the briefing schedule, so that it will be Obama, rather than Bush, who is forced to decide how to defend that case.

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