Guantanamo East=Not Change

Robert Gates lets the cat out of the bag by acknowledging that up to 100 Guantanamo detainees could be held on US soil once the prison camp closes. What shocked me is that he acknowledged that these would be detainees who remain in a legal limbo, without an awaiting trial but without a release. That represents no difference from keeping Gitmo open. The problem was not the location, but the indefinite detention going on there.

Mr. Gates said discussions had started this week with the Justice Department about determining how many of the Guantánamo detainees could not be sent to other countries or tried in courts. He did not say which detainees might be in that group, but independent experts have said it probably would include terrorism suspects whom the military has not yet brought charges against, among them detainees from Yemen and the Qaeda figure Abu Zubaydah, who was subjected to brutal interrogation in secret prisons run by the Central Intelligence Agency.

“What do we do with the 50 to 100 — probably in that ballpark — who we cannot release and cannot try?” Mr. Gates said in a hearing before the Senate Appropriations Committee.

He did not say whether the detainees would be imprisoned temporarily or indefinitely or under what law they would be held. The Obama administration is debating how to establish a legal basis for incarcerating detainees deemed too dangerous to be released but not appropriate to be tried because of potential problems posed by their harsh interrogations, the evidence against them or other issues.

Eric Holder gave a slightly better answer while in Berlin, saying “We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair... How could you ensure that due process was being served by the detention of such a person?” In addition, Holder appeared to be making headway on releasing some detainees in Europe, as countries seem willing to accept them. Similarly, Gates did defend the expected action of the United States settling the 17 Uighurs whose life has been a nightmare, cleared for release from Guantanamo but unable to return to China for fear of persecution. But the idea that we would continue indefinite detentions on anyone truly worries me. Here's Sharon Franklin of The Constitution Project:

"If the United States were to simply move the detainees onto U.S. soil and continue to detain them without charge or legal process, then the act of closing Guantanamo would have been meaningless," said Sharon Bradford Franklin, a lawyer for the Constitution Project, an advocacy group.

As for the Congressional NIMBYs who don't want to see detainees imprisoned in their districts, they might want to appropriate more money for their prisons, then, if they find them so insecure. Ali al-Marri, a legal resident who was held without charges at a Navy brig for five years before being charged through the criminal justice system, just pleaded guilty to conspiring with Al Qaeda operatives, and will spend 15 years in prison at a minimum. Should Illinois lawmakers be wary of his entry into jail? Should they want to offshore him? How about a carjacker? How far does this go? Saying that dangerous terrorists shouldn't be allowed in the jails equals saying that jails in America aren't secure. Is that the message they want to send?

No Ruling

The good news is that the Supreme Court vacated the lower-court ruling that the President is allowed to indefinitely detain individuals who are legal residents of the United States, like Ali al-Marri. The bad news is that the SCOTUS did not opt to take up the case themselves, and thus set a precedent against indefinite detention, instead approving the transfer of al-Marri to civilian custody awaiting trial.

The ACLU wanted this case to go to the Supreme Court, so we could get a definitive ruling that indefinite detention of this sort is illegal and unconstitutional. Sadly, we won't.

Jonathan Hafetz of the American Civil Liberties Union, Al-Marri’s lead lawyer, called the order vacating the lower court decision an “important step,” and added: “We trust that the Obama Administration will not repeat the abuses of the Bush Administration, having now chosen to prosecute Mr. Al-Marri in federal court rather than defend the Bush Administration’s actions in this case.”

The Justice Department had no immediate comment on the Justices’ order. That order spares the new Administration from having to take a formal position on the detention issue that was at stake.

It would be nice, however, to have that ruling for posterity instead of putting our trust in successive Presidents.

Don't Make Bagram Guantanamo II

Today the Justice Department announced that Ali al-Marri, the last enemy combatant held inside the United States, would be charged and tried in a federal court in Illinois. This is a major victory for the rule of law. Instead of being held indefinitely without due process or habeas corpus, al-Marri will be given charges and prosecuted in an American courtroom, not a military commission. All Guantanamo prisoners deserve the same courtesy - either be tried, or released. In addition, we will probably get a ruling on al-Marri's detention anyway, which would be positive to set the precedent:

The Supreme Court already agreed to consider a challenge to the constitutionality of al-Marri’s detention, and the ACLU is asking the Court still to consider that case. According to Al-Marri’s attorney, the ACLU’s Jonathan Hafetz, “it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the U.S. is illegal and that this will never happen again.”

There is another group of detainees that should be extended the rights of being tried or released - those at Bagram Air Force Base in Afghanistan who were transferred there from around the world. The expansion of Bagram has raised fears that Obama may use it the way George Bush used Guantanamo.

Now, human rights groups say they are becoming increasingly concerned that the use of extra-judicial methods in Afghanistan could be extended rather than curtailed under the new U.S. administration. The air base is about to undergo a $60 million expansion that will double its size, meaning it can house five times as many prisoners as remain at Guantanamo.

Apart from staff at the International Red Cross, human rights groups and journalists have been barred from Bagram, where former prisoners say they were tortured by being shackled to the ceiling of isolation cells and deprived of sleep.

The base became notorious when two Afghan inmates died after the use of such techniques in 2002, and although treatment and conditions have been improved since then, the Red Cross issued a formal complaint to the U.S. government in 2007 about harsh treatment of some prisoners held in isolation for months.

While the majority of the estimated 600 prisoners are believed to be Afghan, an unknown number -- perhaps several dozen -- have been picked up from other countries.

Hilzoy had a great piece about this, showing the genuinely conflicting issues at play here. But one thing seems fairly obvious - if we are going to restore our moral authority around the world, we need to have the same standard for those detainees at Bagram not detained in the course of military conflict as we ought to have for those at Guantanamo. That's not just true of the Muslim world, where support for Al Qaeda itself is mixed, but strongly in favor of their efforts to drive the United States off their land, through force if necessary. It's also true of our allies in Europe, who will not work with us on key issues if we just rebuild Guantanamo at Bagram.

In one of his first acts in office, President Barack Obama ordered the closure within one year of Guantanamo Bay, where about 245 people are still detained and which has been widely viewed as a stain on the U.S. human rights record.

But Obama has yet to decide what to do about the jail at Bagram, where more than 600 prisoners are held, or whether to continue work on a $60 million prison complex there.

Washington wants the EU to help it close Guantanamo by agreeing to accept discharged prisoners who cannot be returned to their own countries for fear of torture.

But a confidential EU policy paper, obtained by Reuters, said such help would depend on Washington's overall anti-terrorism policies, including assurances that Bagram or other camps would not become new Guantanamos.

"I would find it very surprising, if the (U.S.) policy remained the same while Guantanamo was closed, to see the EU mobilize itself," EU anti-terrorism coordinator Gilles de Kerchove told Reuters.

The EU policy paper said: "It would not be in conformity with EU fundamental rights policies to simply transfer Guantanamo elsewhere (i.e. in Bagram) without solving the underlying question of the detention of terror suspects for indefinite time and without trial."

This is going to undermine our efforts at global cooperation if it is allowed to fester. Obama's honeymoon around the world will quickly come to an end. We will have lost a great opportunity to push the reset button.

Hope Comes To Civil Liberties

Given the media's desire to reassure everyone that America will still have the power to torture and indefinitely detain even if Barack Obama signs them out of existence, it's actually hard to know exactly whether today marks a triumph of the rule of law or the return of illegal actions back into the shadows. Time will tell. However, if Glennzilla is this pleased, I'm willing to go along with him.

Barack Obama will have spent his first several days in office issuing a series of executive orders which, some quibbling and important caveats and reservations aside, meet or actually exceed even the most optimistic expectations of civil libertarians -- everything from ordering the closing of Guantanamo to suspending military commissions to compelling CIA interrogators to adhere to the Army Field Manual to banning CIA "black sites" and, perhaps most encouragingly (in my view): severely restricting his own power and the power of former Presidents to withhold documents and other information on the basis of secrecy, which has been the prime corrosive agent of the Bush era. As a result, establishment and right-wing figures who have been assuring everyone that, in these areas, Obama would scorn "the Left" (meaning: those who believe in Constitutional safeguards) and would continue most of Bush's "counter-Terrorism" policies are growing increasingly nervous about this flurry of unexpected, Bush-repudiating activity.

There's one additional order that Greenwald didn't mention - the case of Ali al-Marri has been put up for review.

Presidential Memorandum on Review of the Detention of al-Marri

The President instructed the Attorney General, the Secretaries of Defense, State, and Homeland Security, and the Director of National Intelligence to conduct a review of the status of the detainee Ali Saleh Kahlah al-Marri who is currently held at the Naval Brig in Charleston, South Carolina. This will ensure the same kind of legal and factual review is undertaken of the al-Marri case that is being undertaken of the Guantanamo cases.

This is very important. Al-Marri is a legal resident of the United States being held without charges on American soil. After being held on unrelated charges of credit card fraud, he was abruptly designated an enemy combatant and thrown in a Navy brig. The President basically unilaterally decided that a legal resident was an enemy and locked him up. That's the stuff of dictatorships. Al-Marri's lawyers are taking this to the Supreme Court and a legal brief would be needed from the government within 30 days. The restoration of habeas corpus by executive order and this review of the al-Marri case suggests that this will be resolved amicably and within the confines of our best ideals. The Obama Administration wants a delay in the Supreme Court case until the review is completed.

"His case is currently before the Supreme Court. We have asked for a delay in ... going before the Supreme Court in dealing with this case, so that we can properly review the evidence against him," Obama said on his second day as president.

Lawyers for al-Marri, who has been held in a US military prison since 2003 without charge after then-president George W. Bush declared him an enemy combatant, filed briefs for the review on Wednesday, defense counsel Jonathan Hafetz told AFP.

"The government brief was due February 20 but we have already agreed, at the solicitor general's request, to a 30-day extension for that," Hafetz said, adding that he had not seen the executive order.

The 30-day delay would give the Obama administration until around March 20 to file briefs and the case would be reviewed by the Supreme Court in April, Hafetz said.

"We have agreed to that modest delay but would vigorously oppose any further delay that would push the case beyond the current Supreme Court term which ends in June," Hafetz said.

Hopefully this is a serious review and not a stall tactic. But given everything else, I'm inclined to give the benefit of the doubt. We need to keep pressing the issue, but justice is starting to roll down like waters.

The Great Obama Debate Soon To Come To An End

One of the better side effects of Obama's inauguration is that we can finally stop the endless theoretical arguments in the blogosphere about how he means to govern. Whether he's a cautious centrist who will fulfill his campaign promises in incremental ways and do little to challenge Beltway assumptions, or he's a secret progressive who has been hiding his true intentions and employing scores of cabinet members from the political center to give himself breathing space to implement sweeping progressive policies, we'll know soon enough and the exhausting parlor game of pondering will be over. One early test will come in the case of Ali al-Marri, where an Obama Administration will have to provide an opinion on where they stand on key Constitutional issues such as the rule of law, executive power and detainee policy in the "war on terror."

Just a month after President-elect Barack Obama takes office, he must tell the Supreme Court where he stands on one of the most aggressive legal claims made by the Bush administration — that the president may order the military to seize legal residents of the United States and hold them indefinitely without charging them with a crime.

The new administration’s brief, which is due Feb. 20, has the potential to hearten or infuriate Mr. Obama’s supporters, many of whom are looking to him for stark disavowals of the Bush administration’s legal positions on the detention and interrogation of so-called enemy combatants held at Navy facilities on the American mainland or at Guantánamo Bay, Cuba.

During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.

It's almost unquestionable that al-Marri cannot have a fair trial in US courts without acquittal, as a substantial portion of the evidence against him is likely to have been acquired through the use of torture. Bush's intel officials consider al-Marri dangerous and unable to deport. And yet the legal claims made by the Bush team, that the executive has the right to indefinitely detain an American citizen (and in established practice, a legal resident of the United States has the same right to due process), without charges, and hold them inside the United States as long as they wish, is abhorrent and must be disavowed. Obama has already disavowed this during the campaign.

A year ago, Mr. Obama answered a detailed questionnaire concerning his views on presidential power from The Boston Globe. “I reject the Bush administration’s claim,” Mr. Obama said, “that the president has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.”

That sounds vigorous and categorical. But applying this view to Mr. Marri’s case is not that simple. Although he was in the United States legally, he was not an American citizen. In addition, a 2001 Congressional authorization to use military force arguably gave the president the authority that Mr. Obama has said is not conferred by the Constitution alone.

Still, Andrew C. McCarthy, a former federal prosecutor who has generally supported the Bush administration’s approach to fighting terrorism, said Mr. Obama’s hands are tied. He cannot, Mr. McCarthy said, continue to maintain that Mr. Marri’s detention is lawful.

“I don’t think politically for him that’s a viable option,” Mr. McCarthy said. “Legally, it’s perfectly viable.”

Big thanks to Mr. McCarthy for setting the boundaries of what is politically viable for a new President.

Anonymous Liberal has a very good post laying out the options for the Obama Administration:

I do expect that the Obama administration will make some concessions, though. The most likely, it seems to me, is a concession that the basis for originally detaining al-Marri was improper. Remember, al-Marri was already in federal custody and facing trial on criminal charges when the Bush administration transferred him to military custody. There's little question that this move was made for interrogation purposes. The government had been trying to pressure al-Marri into talking, but he was intent on going to trial. So instead they transferred him to military custody and held him incommunicado for 18 months in order to extract information from him (probably by unlawful techniques).

Even if you assume that the President, pursuant to the AUMF, has the authority to military detain al Qaeda "combatants" found legally residing within the U.S., the justification for such detention has to be limited to incapacitation, to preventing the combatant from returning to the "battlefield" and doing more harm. That's the purpose of detention under the laws of war. In this case, al-Marri was already in custody on a criminal matter. He was incapacitated and there was no chance of him "returning to the battlefield." Under those circumstances, transferring him to military custody is not justified, even if you accept all of the government's premises.

This a real test for the Obama administration. If they don't back off at least some of the positions taken by the Bush administration in this case, it will leave a lot of people (myself very much included) very disappointed and angry.

We have a group in power currently that has no problem reconciling the dissonance between prosecuting foreigners for torture while allowing those inside the government who directed and authorized the same to go free. This is what has diminished America's standing in the world and strained relations with allies. If the Obama Administration continues operating under this double standard, insisting that other countries respect human rights and international agreements while declining to do the same, he will find it impossible to convince the world that anything resembling change has come to America, as well as most of us in this country as well. The future of the rule of law, badly crippled through eight years, is at stake.

And within a month, there won't need to be any more debate about it - the first filing in the case is due the Monday after Inauguration Day.

Funny Story

Turns out that, contrary to Administration statements, the Pentagon has 50 videotaped interrogations with terrorism suspects!

The Defense Department is conducting an extensive review of the videotaping of interrogations at military facilities from Iraq to Guantánamo Bay, and so far it has identified nearly 50 tapes, including one that showed what a military spokesman described as the forcible gagging of a terrorism suspect.

The Pentagon review was begun in late January after the Central Intelligence Agency acknowledged that it had destroyed its own videotapes of harsh interrogations conducted by C.I.A. officers, an action that is now the subject of criminal and Congressional investigations.

The review was intended in part to establish clearer rules for any videotaping of interrogations, Defense officials said. But they acknowledged that it had been complicated by inconsistent taping practices in the past, as well as uncertain policies for when tapes could be destroyed or must be preserved.

This is just the beginning. I'll bet there are a thousand tapes out there. Not that we'll see them.

Oh yeah, the subjects in question, including Ali al-Marri, have never been charged with anything, and yet are being detained indefinitely.

Fun stuff.

The Constitution - Still A Governing Document! Who Knew?

One of the problems with government-by-bumper-sticker is that the details simply don't matter and aren't even really looked at with any kind of rigor. Such has been the case with the truly awful Military Commissions Act, which faced defeat again yesterday when the 4th Circuit Court of Appeals ruled that the United States cannot indefinitely hold a detainee without charging them with something.

The opinion is a blow to the Bush administration's assertion that the president has exceptionally broad powers to combat terrorism, including the authority to detain without charges foreign citizens living legally in the United States.

It is the first time a court has said that (Ali Saleh Kahlah al-) Marri cannot be held forever without facing formal charges, but it is a symbolic victory -- Marri will continue his detention in a naval brig in Charleston, S.C. The government said that it was disappointed by the 2 to 1 decision, handed down by a panel of the U.S. Court of Appeals for the 4th Circuit, and that it will appeal to the full court [...]

"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the panel found.

What the Appeals Court is asserting here is essentially the right to habeas corpus, without actually saying it. The Bush Administration was essentially making a legal argument that boiled down to "I can do whatever I want," and as much as sympathetic elements in the courts would like to help him with that (the 4th Circuit is a fairly conservative court), they can't square this arrogant, stubborn and anti-democratic theory of the unitary executive with the Constitution.

By the way, while this doesn't mean that Ali al-Marri will be released anytime soon, it is a good thing that he may be one step closer to returning to Blue Oyster Cult when they play state fairs this summer: