Civil Liberties

The Indefinite Future of Indefinite Detention

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

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On Monday Attorney General Eric Holder visited the U.S. Naval Base at Guantanamo Bay as part of the preparation for closing the detention center there. Although the prison's days are numbered, the policy it 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 President Obama's avowed commitment to protecting civil liberties.

"I don't think there's any question but that we are at war" with terrorists, Holder said at his confirmation hearing last month. 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, where U.S. forces continue to fight Al Qaeda's Taliban allies, but in countries around the world, including the United States.

Holder was not just speaking figuratively. In response 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—acknowledged by Holder and by Elena Kagan, Obama's choice for solicitor general, at her confirmation hearing this month—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 raise funds and attract followers by maintaining a website where incendiary anti-American messages were posted.

Both kinds of suspects have been successfully tried in criminal courts, with one case resulting in convictions and the other ending in acquittal. But under Holder's theory, which was also the Bush administration'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 whose case is now before the Supreme Court. Arrested seven years ago in Peoria, where he was studying computer science at Bradley University, Al-Marri initially was charged with credit card fraud and lying to the government. In 2003, just before he was scheduled to be tried, President Bush accused him of being "closely associated" with Al Qaeda and ordered him confined at the U.S. Navy brig in Charleston, South Carolina, where he has been ever since.

The new administration has until March 23 to weigh in on Al-Marri's case. Since President Obama has said Al-Marri is "clearly a dangerous individual," the government probably will try to keep him imprisoned one way or another.

Unlike Bush, Obama will not assert unilateral, unreviewable authority to lock up anyone he thinks is connected to terrorism and throw away the key. The courts have made it clear they will not let the president 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."

© Copyright 2009 by Creators Syndicate Inc.

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  1. Here is the problem, the FBI and CIA totally fucked it up. I was at a conference last weekend and met one of the prosecutors from down at GUITMO. None of the evidence against these guys has any chain of custody. The FBI and CIA jumped in and demanded to take the lead in all terror investigations back in 2001. Of course the CIA is not a law enforcement agency and had no idea how to collect evidence. The FBI is, but is serially incompetant. Moreover, while the FBI has some evidence collection ability, they mostly do things like seize entire offices of documents. Most of the FBI’s work is white collar stuff. It is not battlefield or crime scene investigations. Neither the FBI nor the CIA had any idea how to actually do this stuff. Worse still, in the heady days following 9-11, I am not even sure they thought about anything beyond just grabbing these people and they were too arogant to let the military, which has organizations like NCIS and CID who have some battlefield collection skills, do anything to help them. No it was an FBI, CIA show and they fucked it up from day one.

    Now we are left with people who in all liklyhood are extremely dangerous. We have a large amount of evidence, things like blackberrys, documents, training manuels and records and the like, that show how dangerous these guys are. But none of that evidence has a chain of custody that would make it admissible in court. You can’t just say “here it is” and expect some thing to be admitted in court. You have to show where it came from and how it got to court. We can’t do that on any of these cases. So the alternative is to either turn the guys lose or keep them forever without trial. Basically we are fucked.

  2. They are not held indefinitely, they are held until the war on terror ends. According to treaties, enemy combatants can be held for the duration of a war. Obviously, there will be no point when “terror surrenders”, but I assume the war on terror will end, when there is no more terrorism.

  3. That picture is racist.

  4. I assume the war on terror will end, when there is no more terrorism.

    I’ll pencil that in for the 12th of Never, that work for you?

  5. John,

    They are dangerous, I agree. But if we can’t legitimately try them. What choice do we have other than to let them go? I’m ok with that, even if it means they try and attack us again. Release them to the country where they were caught. A true policy of non-intervention means I don’t give a fuck what some other country does to them once I turn them over. We shouldn’t intervene militarily because they have policies we don’t like, and we shouldn’t flout international law for that reason either.

  6. Release them on the island of Dr. Moreau. Hijinks ensue!


  7. I’ll pencil that in for the 12th of Never, that work for you?

    How about we just kill them all, there, problem solved. They are bad people anyway.

  8. “How about we just kill them all, there, problem solved. They are bad people anyway.”

    Transfer them all to the new “Camp Y” in AFghanistan. Put them all on a C-130 to go there and then have the plane tragically crash into the Atlantic about 1000 miles from no where. Problem solved.

  9. john’s right: nothing follows up kidnapping better than murder.

    some of those guys are dangerous. many are warlord politics runoff. and things are so fucked there’s no way of knowing – or trusting the gub’mint to tell the truth – about which is which.

  10. “some of those guys are dangerous. many are warlord politics runoff. and things are so fucked there’s no way of knowing – or trusting the gub’mint to tell the truth – about which is which.”

    No we know who they are. You can tell that. That is the easy part. Just because the evidence is not admissible in court doesn’t mean it is not true. These guys are scum. They were not “kidnapped”. They were captured on a battlefield doing mischief out of uniform. In less barbaric times, they would have been hung on the spot. Only in our new barbaric age where commitment to process trumps truth, are they allowed to skate.

  11. I still firmly believe even if we shut down Gitmo, we aren’t going to start bringing these guys back to a secure facility somewhere in CONUS. We’ll either leave them in-country indefinitely or transfer them to a facility nominally controlled by some of our less scrupulous allies. (Egypt comes immediately to mind for some reason.) All we’ll have done is moved the problem from a highly visible location to one where it’s even harder to find out what’s going on and what the .gov is doing in our name. How is that an improvement?

  12. We shouldn’t kill them, they can be very useful. Many American soldiers are reluctant to shoot on civilians. Let’s just give them some job training. We just need to use these people to help round up weapons during the next catastrophe in America and then we will finally see a reduction in innocent gun crime victims.

  13. too bad the CIA destroyed those interogation tapes, if they could just show them all to the people then everyone would realize these prisoners are evil. Then everyone would accept that they need to be locked up for life, unfortunately the incriminating evidence can’t be shown to regular people just because.

  14. No we know who they are. You can tell that. That is the easy part.

    Even the ones who were supposedly “captured” by Afghani warlords and then turned over to US military? Call me cynical, but I trust random warlords a lot less than US military personnel.

  15. Tulpa,

    We have released plenty of people from GUITMO and many of them have shown right back up as terrorists, including one who killed dozens of people in Iraq and another who became the head of AQ in Yemen. I wish you were right and these guys were all inocent goat herders. But they are not.

  16. A very serious question to those who were against former President Bush’s policies n regards to captured enemy combatants and arrested US citizens suspected of terrorism (there were but a few if I remember correctly and Padilla was one of them). What would your policy be in regards to enemy combatants captured in Afghanistan, Iraq, etc…? Do you think they should be granted habeus corpus rights and be tried in our criminal courts? Do you think military tribunals are ok? I’m guessing no tot he second question. As for US citizens caught in the US, is it your contention that since they are US citizens they do have habeus corpus rights and should be granted a trial on constitutional grounds? I think they should and this is the one policy of former President Bush, that I thought was clearly unconstitutional. These people are scum, but they are US citizens. They should be tried in court. I have never received clarity from other libertarian/classical liberal thinking people, especially, in regards to captured enemy combatants. I’ve alwasy read what “Bush did wrong”, but never an alternative solution to the “enemy combatant” situation. They aren’t POW’s. So what to do with them? Thanks in advance.

  17. How do we know that the guys released were only the guys who could be counted on to blow people up in Iraq? wouldn’t that help Petraus make the case for more power? We already know that the government likes to take advantage of crisis to increase power. If I was renditioned for 4 years for herding goats and then released from guantanamo then you can bet that there will be some dead people after I get out..not sure whom, then aholes like you will say, “we need to rendition and torture more folks”.

  18. serious answer…the war prisons should be in the country where the folks are captured…Obama should withdraw from these places and hand over the prison keys to whatever government is left behind…they can do what they want with the prisoners.

  19. What would your policy be in regards to enemy combatants captured in Afghanistan, Iraq, etc…?

    Torture and execute them on the spot if they are even suspected of terrorism.

    Do you think they should be granted habeus corpus rights and be tried in our criminal courts?

    No, their not citizens.

    Do you think military tribunals are ok?

    Not needed, execute them.

    As for US citizens caught in the US, is it your contention that since they are US citizens they do have habeus corpus rights and should be granted a trial on constitutional grounds?

    Probably, but if ther is good evidence for terrorism, me can cave a “terrorism exception” to the bill of rights.

  20. fake posts rock

  21. Obama should withdraw from these places and hand over the prison keys to whatever government is left behind…they can do what they want with the prisoners.

    I believe that turning over prisoners to countries that are likely to violate their human rights would be the “extraordinary rendition” that Obama campaigned against.

    Obama and the Dems are discovering the gap between campaigning and governing. To date, they are closing that gap by adopting Bush administration policies, without meaningful exception.

  22. Without a chain of custody, prosecution could make anyone appear to be a terrorist. Just take a stack of terrorist documents and say they belong to someone. Scribble his name on some of the documents. That person can deny it all he wants but we have evidence that he’s a terroist. Hell, he even scribbled his name on some of them.

    I don’t think the tribunal judge(s) that let these people walk saw any reliable evidence that would tie them to terrorism. No blackberry, no documents, no training manual, no records, and certainly no large amount of evidence. If they did, I doubt they would have let them out.

    There are people at the gitmo prison that deserve to be there. There are people who shouldn’t be there. The problem is we can’t properly sort out who’s who. Some bad guys will get released, some no so bad guys won’t. It’s one big cluster fuck that we created, therefore it is on us to unfuck it.

    If country X invaded this country and captured a boy scout, held the scout for years treating him like shit, I’d put money on the scout looking for some payback if he gets out. Could you blame him? I would agree that every single prisoner at Gitmo is a potential threat. Some of that is our own doing.

    If we didn’t take prisoners, it wouldn’t be an issue. It’s one big cluster fuck that we created, therefore it is on us to unfuck it.

  23. I wish you were right and these guys were all inocent goat herders. But they are not.

    No one says they were all innocent, bud, but there’s a good chance a significant percentage of them are. I’d rather risk letting a bad guy go than risk keeping an innocent man in prison indefinitely.

  24. Here are some excerpt from the foreign press about the recent British resident released from Gitmo:

    …… suffering from a huge range of injuries after being beaten by US guards right up to the point of his departure from Guant?namo Bay, …… During medical examinations last week, doctors discovered injuries and ailments resulting from apparently brutal treatment in detention.

    ….found to be suffering from bruising, organ damage, stomach complaints, malnutrition, sores to feet and hands, severe damage to ligaments as well as profound emotional and psychological problems …..

    Mohamed’s British lawyer, Clive Stafford Smith, said his client had been beaten “dozens” of times inside the notorious US camp in Cuba with the most recent abuse occurring during recent weeks. dle ages.”

    Lieutenant colonel Yvonne Bradley, Mohamed’s US military attorney, added: “He has been severely beaten. Sometimes I don’t like to think about it because my country is behind all this.”
    ……….Stafford Smith, the director of legal charity Reprieve, said yesterday that Mohamed had been routinely beaten by Guant?namo’s notorious emergency reaction force, a six-strong team of guards in riot gear who have been the subject of previous abuse allegations. The alleged beatings were routinely administered against Mohamed “for no reason” and some were “recent” according to Stafford Smith.

    In the American media there was a brief mention of a military officer saying that everything was basically just fine at Gitmo.

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