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State Dept. (and Justice?) vs. New Indefinite Detention Rules

The Los Angeles Times follows up on Attorney General Eric Holder’s moment of consensus Wednesday with Sen. Lindsey Graham (R-S.C.) on creating new indefinite detention rules for a post-Guantanamo effort against al-Qaeda. It’s a consequence of the Obama administration’s decision not only to close Guantanamo but to renounce the CIA’s long-term secret indefinite detention facilities, colloquially known as “black sites.” And the State Department is uneasy about creating a new framework for extrajudicial indefinite detention outside routine battlefield detention in war zones like Afghanistan:

[A]pproval of the guidelines is being delayed, primarily by State Department officials who are concerned that formalizing the rules will lead inevitably to greater use of long-term detention by the administration under conditions similar to those at the Guantanamo Bay prison in Cuba, which President Obama has pledged to close.

You have to figure that’s Harold Koh, the State Department legal adviser, taking that position. Since the absence of a new detentions framework for outside Afghanistan — like for, oh, I don’t know, Pakistan and Yemen — creates an incentive for the Obama administration to kill terrorism suspects rather than capture them and put them … somewhere … it casts a new light on Koh’s legal blessing of the administration’s drone strikes. (And, perhaps, assassinations.)

Attorney General Holder briefly touched on a similar point about the geopolitical implications of a terror-detentions system last night, although I didn’t really view what he said as particularly significant. After reading the Los Angeles Times’ piece, however, I wonder if he was sticking up for State’s viewpoint here. You make the call:

[T]here is the issue of international cooperation. Our civilian courts are well respected internationally. Our allies are comfortable with the formal and informal mechanisms to transfer terrorism suspects to the United States for trial in civilian court. As we prove the effectiveness and fairness of military commissions, I expect our allies will take notice. And I hope they will grow more willing to cooperate with commission trials.

But if the allies aren’t comfortable with the commissions yet, how comfortable will they be with indefinite detention? Especially after the hard-fought battle to close Guantanamo?

Finally, the paper identifies some of the advocates of a new indefinite detention system as coming from the Pentagon. That would make sense, given Col. William Lietzau’s mandate, as Pentagon detentions chief, to come up with new post-Guantanamo detentions policy for the department.

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