At the Senate Judiciary Committee hearing this morning titled “The Legal, Moral, and National Security Consequences of ‘Prolonged Detention,’” it was actually Richard Klingler, a former lawyer in the Office of White House Counsel under President George W. Bush and former general counsel on the National Security Council staff, who presented the dilemma most starkly in his testimony. From his prepared remarks:
The debate over indefinite detention often wrongly focuses on Guantanamo Bay. The current practice is considerably more widespread, and any limitations on indefinite detention would have correspondingly wide implications. The U.S. military indefinitely detains enemy combatants, including members and supporters of al Qaeda and other terrorist organizations, on a wide scale in Iraq and Afghanistan, as well as at Guantanamo, and press reports indicate that U.S. officials work closely with our allies to detain al Qaeda members in other countries.
“Prolonged” detention is thus not something proposed for the future, for just a small subset of Guantanamo detainees. It is, instead, a practice that this Administration is already conducting on a widespread scale, will continue to pursue, and has already defended repeatedly in federal court. No matter how Guantanamo detainees are handled, this Administration will continue, directly or indirectly, to detain hundreds if not thousands of enemy combatants indefinitely in many places for many years to come.
And he added:
“The extent of the current Administration’s continued use of war powers against terrorist organizations is hard to overstate. The Obama Administration has pursued nearly every aspect the prior Administration’s conduct of the war in Iraq and Afghanistan and against terrorist networks globally. As a formal matter, this Administration has embraced nearly all the components of wartime and related Executive powers asserted by its predecessor and then subject to controversy. In addition to continuing indefinite detention in Afghanistan, Iraq, and Guantanamo, and committing to do so for a subset of Guantanamo detainees even once transferred elsewhere, the Administration has, for example:
• continued, according to the Attorney General, a valuable foreign intelligence surveillance program, unsupported by warrants, that critics had characterized as “warrantless wiretapping”;
• continued to use provisions of the previously controversial PATRIOT ACT, including the most contested provisions, which the current FBI Director has defended and sought to have reauthorized;
• asserted through a Presidential Signing Statement that the Executive Branch would treat certain statutory provisions infringing on the President’s constitutional powers, as determined by the President, as “precatory” or “advisory”;
• denied habeas corpus rights to detainees held by the military at Bagram, Afghanistan and elsewhere beyond Guantanamo, avoiding judicial review of detention decisions previously criticized as creating a “legal black hole”;
• continued the robust use of the “state secrets doctrine” to prevent disclosure in litigation of national security information;
• fought against disclosure of documents, under the Freedom of Information Act, where the military finds that release would harm the national security;
• declined to extend the protections of the Geneva Conventions for prisoners of war to members of al Qaeda;
• continued to act against designated financiers of terrorism, and against would-be travelers placed on “terror watch lists,” **without affording the affected individuals the due process **protections demanded by critics; and
• committed to continue use of military commissions, virtually unmodified beyond formal recognition of requirements previously imposed by military judges. [All emphasis added.]
The upshot of all this, said Klinger, is that “the wartime framework underlying [these tactics] have settled well within the mainstream of the American tradition,” setting the stage for ” a broader recognition of the established legal basis for indefinite detention.”
That was clearly not what Sen. Russ Feingold (D-Wis.) hoped to establish by holding today’s hearing, which also included testimony from a range of established international law and human rights experts about the dangers such tactics have created. But Klinger’s testimony, although perhaps framed to legitimize the Bush administration’s actions now under assault, did make clear the importance of Congress taking a hard look at what the current administration is doing under its watch.
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