The Indefinite Future of Indefinite Detention

President Obama may close Guantanamo, but the policy it represents will continue.

Barack Obama promises to close the military prison at Guantanamo Bay, Cuba, by January. But the policy the prison has come to symbolize, indefinite military detention of terrorism suspects, is likely to continue. The form it takes will tell us a lot about the strength of Obama’s avowed commitment to protecting civil liberties.

“I don’t think there’s any question but that we are at war” with terrorists, Attorney General Eric Holder said at his confirmation hearing in January. We did not notice when the war began, he said, and we may never know when it ends. The battlefields are not only in Afghanistan but in countries around the world, including the United States.

Holder was not just speaking figuratively. Responding to a question from Sen. Lindsey Graham (R-S.C.), he said that if someone suspected of helping to finance Al Qaeda were captured in the Philippines, far from any scene of combat, he would still be considered “part of the battlefield.”

The implication, Holder acknowledged, is that such a person could be held as an “enemy combatant” until the “cessation of hostilities,” which in this case effectively means forever. So could, say, leaders of a U.S.-based Muslim charity suspected of funneling money to a terrorist organization or a graduate student at an American university accused of helping Al Qaeda by maintaining a website where incendiary anti-American messages were posted.

Both kinds of suspects have been successfully tried in criminal courts, with the former case resulting in convictions and the latter ending in acquittal. But under Holder’s theory, which was also George W. Bush’s, the government need not have bothered; it could simply have transferred these defendants to military custody, where they could be held indefinitely without trial.

That is what happened to Ali al-Marri, a legal U.S. resident from Qatar who was arrested seven years ago in Peoria. In 2003, just before he was scheduled to be tried on charges of credit card fraud and lying to the FBI, he was sent to the U.S. Navy brig in Charleston, South Carolina, under a presidential order that identified him as an Al Qaeda sleeper agent. In late February, two months before the U.S. Supreme Court was scheduled to hear Al-Marri’s challenge of his detention, the Obama administration unsealed an indictment that charges him with providing material support to terrorists.

The decision means Al-Marri will finally get his long-overdue day in court, but it also means the Supreme Court will not decide the legality of his detention. The Court agreed with the Justice Department that the case had become moot and vacated an appeals court decision upholding the president’s authority to detain Al-Marri.

Obama has said he does not believe the president has the unilateral, unreviewable authority to lock up anyone he identifies as an “enemy combatant” and throw away the key. In any case, the courts have made it clear they will not allow the president to exercise such power. Even Sen. Graham, who was so pleased by Holder’s declaration of war that he offered to vote for him on the spot, concedes that in “a war without end,” it is especially important to determine each prisoner’s status through a “transparent” procedure that involves “an independent judiciary” and offers “substantial due process.”

But that procedure inevitably will be far less rigorous than a trial, and the government will be tempted to use the easier option for anyone suspected of aiding terrorism, including U.S. citizens and legal residents, whether captured on or off the battlefield, in the United States or abroad. It is not at all clear what standards will be used to determine who receives full due process and, if convicted, a fixed sentence, as opposed to “substantial due process” and indefinite detention.

Holder got one thing right at his confirmation hearing. “How we resolve that issue,” he said, “will say more about us as a nation than almost anything.”

Senior Editor Jacob Sullum is a nationally syndicated columnist. © Copyright 2009 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Paul||

    Told you.

    Guantanamo is just a symbol of something larger.

  • ||

    More of that hope and change in the new age of reason.....pfffftttt. Whatever.

  • Jack||

    Why can't we triple Gitmo?

  • Bronwyn||

    Shut the fuck up, Jack.

  • Jack||

    "Shut the fuck up, Jack."

    More anti-free speech Liberal Fascism, I see.

  • Jack||

    So can we dump the Gitmo detainees in any of your home towns? Hmm?

    What about yours, Bronwyn? Want to live next to Islamofascists?

  • ||

    Paul,
    Or is it a metaphor for something bigger?

  • ||

    Well, seeing as how I'm a private citizen with no access to the strong-arm methods of government, no. It's just li'l ol' me telling you to shut the fuck up.

    No fascism required.

    Also, you may want to refresh yourself on the definition of "fascism".

    Also and but too, I already live next door to a batshit crazy family, I'm sure a former detainee would be much more pleasant. And if not, there are several acres between me and my neighbors anyway, so who really gives a shit? Not me.

  • ||

    I find it hilarious that the exact same people who complained for eight years about Bush having excessive executive power have had nothing to say about Obama thus far failing to give back any of said power.

  • ||

    "Also and but too, I already live next door to a batshit crazy family, I'm sure a former detainee would be much more pleasant. And if not, there are several acres between me and my neighbors anyway, so who really gives a shit? Not me"

    That is right. We let Mahammad Atta and his groovy band in the country. I am sure they were much more pleasent than your neighbors. Not like anything bad happened or anything.

    Are you sure it is your neighbors who are nuts?

  • ||

    You mean the messiah really doesn't set captives free?

  • ||

    Oh, lordy. Time to reset INCIF again.

  • Jack||

    Anyone? Anyone want KSM in their town?

  • Jack||

    Maybe after BO pushses through his amnesty he can grant them American citizenship, too!

  • ||

    Bronwyn,

    There have been several people whom we let out of GUITMO who have gone on to blow themseleves up in other countries. I don't know about your neighbors, but I bet they are pretty unlikly to show up in your living room with an explosive vest on and a inkling ot use it.

  • Bronwyn||

    http://www.mcclatchydc.com/detainees/story/38773.html

  • ||

    Browyn,

    Yes we did hold some of the wrong people. But we held some of the right people to. There are innocent people in prison all over America today. That sad fact, however, doesn't mean we should let everyone out of prison.

  • Warty||

    Jack is no Neil.

  • Bronwyn||

    Ain't that the sad truth, Warty.

  • Evan A.||

    Jack: Gitmo is a symbol for what is un-American despite who is confined their. This is a fact because contradicts our bill of rights and amendments within the constitution.

    My hometown is NYC. I actually saw the trade centers come down and felt that shit in my lungs for two weeks after.

    I swear to God that I would have no problem having all of those guys brought to my city and confined within a legitimate, torture free prison system.

    Frankly, I'm also tired of you people acting like pussies about this, especially those who are not from areas that were attacked. If you need to learn how to grow some ball then come NYC.

    Evan
    http://www.beyondrace.com

  • ||

    "Frankly, I'm also tired of you people acting like pussies about this, especially those who are not from areas that were attacked. If you need to learn how to grow some ball then come NYC."


    if you will let me, i will gladly shoot all of them personally and end the problem. If they promise to only attack NYC, LA, San Fran and other selected liberal enclaves, then I am all for letting them go. Let you people deal with them.

  • Menstrual Retardation||

    "Frankly, I'm also tired of you people acting like pussies about this, especially those who are not from areas that were attacked. If you need to learn how to grow some ball then come NYC."

    You want to know what area they attacked? Okay, here's a map. Up here, Canada. Down here, Mexico. See all of that space in between the two? THAT'S the area they attacked.

    Dipshit. That's like saying your house wasn't robbed because when they burgled your bedroom, you were in the can.

    Dipshit.

  • Randall||

    "Frankly, I'm also tired of you people "

    You people? You people?

    Fucking racist.

  • ||

    There have been several people whom we let out of GUITMO who have gone on to blow themseleves up in other countries. I don't know about your neighbors, but I bet they are pretty unlikly to show up in your living room with an explosive vest on and a inkling ot use it.

    There has been far nore that have been suspected but never tried for violent crimes, tried and not convited of violent crimes, who later went back into their old neighborhoods and committed violent crimes.

    That is not a reason to lock up people forever on mere suspicion. Feel free to explain to me WTF is the difference. If you can't convince a jury someone is a terrorist, send them home. The fact that our oh so competent government has, after goddamed years, yet to even collate the evidence against them makes me think they don't even want present it.

  • ||

    The obsession of Jacob Sullum with the "right" of terrorists to do their thing is bizarre. Extreme libertarians are like leftists. They are for for the most part academics and journalists who live in a sophomoric fantasy world. They have no responsibilities, and so they have never developed any sense of responsibility.

  • Wicks Cherrycoke||

    You mean, Obama and the Democrats' vilification of Bush over Gitmo and "what it says about us as a people" was merely campaign rhetoric??? That their rejection of Gitmo is cosmetic only??? NO! THAT CANNOT BE!!

    Next thing you'll be telling me is that Obama won't bring the troops home from Iraq on Day One like he promised....

  • ||

    For the most part I wouldn't want a guy who has been CONVICTED, with solid evidence, of murder living next to me. (Depends on who was murdered and why of course.)
    That said, if some guy tells me that another guy told him that he has heard form another guy that he is a murderer I couldn't care less.

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