Bagram, Habeas, and the Rule of Law
Andrew C. McCarthy has an article up at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.
McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.
More details after the jump.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Fixing Detention
The Obama administration performed another Friday afternoon Guantanamo news dump last week, indicating that it will probably maintain administrative military detention of combatants under a forthcoming executive order.
This is unnecessary executive unilateralism. As Benjamin Wittes and Jack Goldsmith point out in today’s Washington Post, this is a debate that ought to be held in Congress.
This would not be a tough push for Obama. The Obama administration already amended its claim of authority in a filing with the District Court for the District of Columbia, the judicial body sorting through the detainees remaining at Gitmo. Convincing Congress to ratify this decision should not be hard; the differences between the Bush administration’s “enemy combatant” criteria and what the Obama administration defines as “substantially supporting” Al Qaeda and the Taliban are minute. As I wrote in a previous post on detention definitions and decisions, the actions proscribed under these two standards and the activities constituting the “direct participation in hostilities” standard used in the case of Salim Hamdan are nearly identical.
The only positive news about the pending announcement is that the creation of a national security court specializing in detention decisions is probably not in the cards. As I have said before, national security court proposals play the propaganda game the way terrorists want to and often revive the prospect of domestic preventive detention of terror suspects, to include American citizens who would otherwise be charged with a substantive crime for domestic acts. The Cato Institute filed an amicus brief opposing this practice in the Padilla case.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Cheney vs. Obama: Tale of the Tape
In case you missed it, President Obama and former Vice President Dick Cheney spoke separately today on terrorism and national security. Like two boxers at a pre-fight press conference, they each touted their strength over their opponent. They espoused deep differences in their views on national counterterrorism strategy.
The Thrilla in Manilla it ain’t. As Gene Healy has pointed out, they agree on a lot more than they admit to. Harvard Law professor and former Bush Office of Legal Counsel head Jack Goldsmith makes the same point at the New Republic. Glenn Greenwald made a similar observation.
However, the areas where they differ are important: torture, closing Guantanamo, criminal prosecution, and messaging. In these key areas, Obama edges out Cheney.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
The Jurisprudence of Detention: Definitions and Cases
Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.
Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.
But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Al-Marri Pleads Guilty
Ali Saleh Kahlah al-Marri pleaded guilty to conspiring with al Qaeda leaders to commit acts of terrorism yesterday. He could be sentenced up to 15 years in prison, though he has spent nearly half that awaiting trial and may get credit for the time already served.
Al-Marri was an exchange student who arrived in the United States on September 10th, 2001 as an al Qaeda sleeper agent. Read the government’s declaration of facts used to detain him. This is the stuff of movies; the FBI took a dangerous man off the streets when it arrested him.
Unfortunately, the government took him out of the criminal justice system and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed in the future). He became a domestically detained enemy combatant and the test case for future domestic military detentions. Just as attorneys seek sympathetic plaintiffs to overturn unjust laws, the government can find unsympathetic defendants to justify overbroad claims of power. Al-Marri is about as unsympathetic as you can get.
The real tragedy is that al-Marri will serve a relatively short sentence. Had the government prosecuted him on the seven charges alleged the first time around, he would have been put away for decades. Related posts here, here, here, and here.
Supreme Court Will Not Hear al-Marri Appeal
The Supreme Court previously granted certiorari to the appeal of Ali Saleh Kahlah al-Marri, the only enemy combatant taken into custody domestically and detained in a military brig. The Court of Appeals for the Fourth Circuit held that he could continue to be detained as an alleged al Qaeda operative without trial. The Supreme Court reversed its decision to hear the case today.
The Obama administration moved him back into the civilian criminal justice system, and denied that it was doing so to keep the lower domestic detainee precedent intact. It argued that denying review while vacating the Fourth Circuit’s decision would serve the ends of justice. Apparently, the Court agreed.
As I have said before, domestic counterterrorism is a law enforcement task, not a military one. The Washington Post and New York Times both wanted the Supreme Court to hear the case and rule that domestic detention is unconstitutional.
Obama’s actions seem to indicate either a lack of interest or a disagreement with the sweeping power claimed by President Bush, that presidents can simply whisk off any person in the U.S. — including citizens — to a military prison without a trial. But now that the Supreme Court has declined to rule on the executive’s claims in this case, we will not have the benefit of a Supreme Court precedent repudiating the executive’s overreach. Whether or not Obama tries to repeat what Bush did, another president will likely try to do it again. Not good.
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