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DOJ Claims Offer Clues on Obama Detention Policy

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Obama-pc1.jpg

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.”

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Law.jpg

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.”

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