HEADLINE: Indefinite detention possible for suspects at Guantanamo Bay
BYLINE: Peter Finn;Anne E. Kornblut
The Obama administration is preparing an executive order that would formalize indefinite detention without trial for some detainees at the U.S. military prison at Guantanamo Bay, Cuba, but allow (habeas corpus) those detainees and their lawyers to challenge the basis for continued incarceration, U.S. officials said.
The administration has long signaled that the use of what the administration calls prolonged detention, preferably at a facility in the United States, was one element of its plan to close Guantanamo. An interagency task force found that 48 of the 174 detainees remaining at the facility would have to be held in such conditions.
"We have a plan to close Guantanamo, and this detainee review process is one element," said an administration official who discussed the order on the condition of anonymity because it has yet to reach the president.
However, almost every part of the administration's plan to close Guantanamo is on hold, and it could be crippled this week if Congress bans the transfer of detainees to the United States for trial and sets up steep hurdles to the repatriation or resettlement in third countries of others.
Officials worked intensively on the executive order over the past several weeks, but a senior White House official said that it had been in the works for more than a year. If Congress blocks the administration's ability to put detainees on trial or transfer them out of Guantanamo, the official said, the executive order could still be implemented. (??)
"I would argue that you still have to go ahead because you can't simply have people confined to a life sentence without any review and then fight another day with Congress," the administration official said. "One of the things we're mindful of is [that] you can't have a review conducted by the same people, in the same process, who made the original decision to detain. You have to have something that is different and is more adversarial, which the Bush administration never had."
Under the system established by the previous administration, Guantanamo detainees could go before military review panels with "personal representatives," also military officers, who explained the process but could not act as lawyers. The system envisioned under the executive order would be more adversarial and would allow detainees to challenge their incarceration periodically, possibly every year. (DO- fairness)
"There isn't a single serious commentator on the subject who hasn't thought something like this wasn't necessary as part of a rule-of-law approach," said the senior White House official, who also spoke on the condition of anonymity.
Provisions in the defense authorization bill, which has passed the House and is before the Senate, would effectively (1) ban the transfer of any detainee to the United States for any purpose. That (2) rules out civilian trials for all Guantanamo detainees, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks. His potential prosecution had remained possible even though the administration had balked in the face of political opposition to a trial in New York.
The defense bill would effectively force the administration to conduct (3) only military commissions, and, they would be at Guantanamo Bay, which would also have to remain open to (house ?) those held indefinitely. The bill would also create (4) new requirements before the administration could repatriate or resettle detainees cleared for release by the interagency task force.
"If it passes, it is the final, decisive blow to the president's plan," said Tom Malinowski, head of the Washington office of Human Rights Watch.
In a speech at the National Archives in May 2009, President Obama said his administration would (1) use criminal trials, (2) reformed military commissions, (3) transfers to other countries, (4) releases and (5) continued detention in pursuit of its commitment to close Guantanamo.
An administration task force ultimately determined that at least 48 detainees were too dangerous to release but could not be put on trial. Officials have said the evidence against these detainees has been tainted by torture or cannot be used in court because it is classified or would not meet legal standards. (DO- why cannot be put on trial)
"When the review panel puts someone in the category of long-term detention, the 48 people, what happens then?" the administration official said. "Are they there for the rest of their lives? What's the review mechanism? How impartial is it? Do they have a chance to contest it? All of that stuff has to be answered. And we have been working on an executive order laying out these elements."
Those designated for prosecution but who are not charged could also have their cases reviewed under the proposed system in the executive order, the White House official said.
Detainees at Guantanamo would continue to have access to the federal courts to challenge their incarceration under the legal doctrine of habeas corpus. Officials said the plan would give detainees who have lost their habeas petition the prospect of one day ending their time in U.S. custody. And officials said the International Committee of the Red Cross has been urging the administration to create a review process.
Some civil liberties groups oppose any form of indefinite detention, even with a built-in mechanism to challenge incarceration.
"Indefinite detention without charge or trial is wrong, whether it comes from Congress or the president's pen," said Laura W. Murphy, director of the American Civil Liberties Union's Washington legislative office. "Our Constitution requires that we charge and prosecute people who are accused of crimes. You cannot sell an indefinite detention scheme by attaching a few due-process baubles and expect that to restore the rule of law." That is bad for America and is not the form of justice we want other nations to emulate."
The executive order, however, could be an effort to preempt legislation supported by some Republicans, which would create a system of indefinite detention not only for some Guantanamo detainees but also for future terrorism suspects seized overseas.
Malinowski said there is a "big difference" between using an executive order, which can be rescinded, to handle a select group of detainees thatObama inherited, and legislating a general indefinite detention scheme.
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SUNDAY, JANUARY 9, 2011
Detention, trials & American values
(Delighted to welcome back alumna Laurie Blank, who contributes this guest post)
As Professor Amos Guiora and I argue in"Don’t Deny Detainees Their Day in Court,"an op-ed published a few days ago in the Los Angeles Times, the idea that every person deserves his or her "day in court" is a fundamental principle in the United States and many countries worldwide.
As Professor Amos Guiora and I argue in"Don’t Deny Detainees Their Day in Court,"an op-ed published a few days ago in the Los Angeles Times, the idea that every person deserves his or her "day in court" is a fundamental principle in the United States and many countries worldwide. Yet more than nine years after 9/11, the United States remains paralyzed not just about how to give the thousands of detainees in U.S. custody around the world their day in court but about whether to give them that day in court.
Multiple judicial forums have been created to try nonstate actors who have perpetrated war crimes from Rwanda to Sierra Leone to Cambodia to the former Yugoslavia — to give them their day in court. That makes the failure to answer this question for post-9/11 detainees particularly perplexing and deeply troubling.
(DO- all of the accused at the tribunals are unarguably non-state actor?)
Two successive administrations have been incapable of answering what should be the most basic questions: if, how and where to try terrorists. In the meantime, post-9/11 detainees languish in indefinite detention. The result is a fundamental and overwhelming violation of the rights of individuals who are no more than suspects, in either past or (more problematic) future acts.
The Obama administration reportedly now intends to issue an executive order establishing indefinite detention without trial for detainees at Guantánamo Bay. Such a decision would formalize this violation of basic rights. Denying individual accountability would now be official U.S. policy and law.
The claim that granting prisoners the right to file petitions for habeas corpus and receive regular reviews is sufficient is disingenuous. At best, that only addresses detention status, without doubt an important question. But it does not facilitate the resolution of individual accountability, the principle that requires that an individual have the opportunity for adjudication of his or her guilt or innocence. It is wrong morally, not to mention legally.
The first step, therefore, is to determine that individuals detained post 9/11 deserve their day in court, just like domestic criminals and perpetrators of war crimes. The next step is to implement a mechanism that can do so fairly and effectively. Speedy resolution is, by now, wishful thinking at best.
Unfortunately, for the last nine years, the U.S. has skipped the first step, and has let narrow political considerations devoid of morality, legality and decency determine the nature of the second step. Decision-makers talk of constitutional law and a "beacon on the hill," but acting on that talk seems to present overwhelming challenges. Principles have been discarded in the name of expediency.
Just as crimes grant the state the power to punish, so the state owes the detainees a duty of resolution, a duty to give them their day in court and either prosecute or release, convict or acquit. In the absence of an effective framework to do so, the state is engaging in unconscionable behavior - with an immunity largely granted by Congress and courts alike. Supreme Court and congressional acquiescence in the face of executive power has historically ill-served the American people.
Those who argue that indefinite detention accords with the treatment of prisoners of war gloss over two key distinctions: POWs are (1) held in protective custody and (2) released at the end of hostilities, whereas post-9/11 detainees are held in de facto punitive detention and terrorism has no end to trigger release. Those who want to argue that we are at war with al-Qaeda and other terrorists fail to consider that the law of war and principles of morality in armed conflict do not countenance such an approach, where detainees face the prospect of generational, even lifetime, detention without charge or trial.
Under the law of war, detention is a fundamental aspect of the authority to wage war and has the critical purpose of removing enemy fighters from the battlefield.
Within this framework, POWs are held as a preventive measure – states cannot prosecute POWs for engaging in lawful belligerent acts, i.e., for simply being enemy soldiers fighting on the battlefield. Battlefield detention is lawful and appropriate within this framework and there is no obligation to prosecute or release in this paradigm. The similarity to the indefinite detention we talk about today for detainees at Guantanamo thus lies in the fact that POWs are held without charge and for an unknown (but, critically, not undefined) period of time.
It is the differences that are critical here, though. The differences stretch traditional law of war detention to the extreme and create the effect of forcing a square peg into a round hole. Geography, lawful belligerency, suspected criminality, time parameters – each of these creates another stretch, another tear in the fabric.
► First, battlefield detention is just that – detention of those picked up on the battlefield.
As I’ve noted in an earlier blog post, defining the battlefield in the current conflict against Al Qaeda and other terrorist groups is a critical task, albeit one not yet undertaken or accomplished. We therefore face a situation in which detainees may be held indefinitely under this new framework even if they were picked up either far from a battlefield or – perhaps – in an area where we are uncertain if it is the battlefield. If we cannot identify the battlefield, how can we identify battlefield detainees?
► Second, law of war detention is designed to hold enemy fighters until the “cessation of active hostilities.” In World War II, we held German soldiers for several years, until the end of the war. Several years – not a lifetime. The nature of terrorism and counterterrorism is that we are not going to defeat terrorism; rather, terrorism is something to be managed, minimized, defended against. Not only can we not envision an end to the hostilities, but more problematic, we have absolutely no way of identifying what that end might look like. Sure, we might defeat Al Qaeda in some meaningful way, ending their ability to launch any effective attacks against the U.S. or its allies, but some other terrorist group will take up, or have already taken up, the same fight and we will still be engaged in a conflict with terrorist groups. The consequence of this uncertainty and this very nature of terrorism is that indefinite detention effectively means generational, if not lifetime, detention. Such detention is on another scale entirely from law of war detention as we know it.
► Finally, (lawful) belligerency and (unlawful) criminality also raise questions here. Law of war detention is primarily designed for lawful belligerents, prisoners of war. The U.S. has gone to great pains – and rightly so in most cases – to argue and demonstrate that the folks at Guantanamo are not lawful belligerents. Rather, they are persons not entitled to any form of privileged combatancy under traditional principles of international law. Still more, they are generally persons we suspect (or could likely prove depending on the evidence available) have committed violent crimes against Americans, American interests and our allies. Unlike law of war detention, therefore, where individuals held in protective are specifically not suspected of or charged with any crime, the detainees to be held in indefinite detention are effectively held in punitive custody, suspected of culpability in violent, criminal terrorist attacks but neither charged nor prosecuted.
Indefinite de
tention in these circumstances is a square peg in a round hole and completely undermines the basic notion of individual accountability, thus constituting a fundamental miscarriage of justice. The United States, uncertain whether the detainees are criminals or more akin to fighters in an armed conflict, must still grant them the basic right to a day in court.Without that, individual accountability is simply eliminated, effectively saying that the adjudication of individual liability is burdensome, perhaps even irrelevant.
This is not the American way; rather, it is a repudiation of American values. Whatever method of trial one prefers – civilian courts, national security courts, or military commissions, the time has come to decide and adjudicate.
