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.