Bush regime's terror program continues unabated while Congress dithers

Ghailani, a Tanzanian seized in Pakistan in 2004 on suspicion of participating in the 1998 U.S. embassy bombings in East Africa, spent two years under interrogation in a secret CIA prison before being sent to Guantanamo in 2006. Today, while expressing full confidence in the U.S. criminal justice system, Attorney General Eric Holder initiated Ghailani's prosecution in federal court -- 11 years after the crime.

Illustration by: Matt Mahurin

At the same time, President Obama is considering creating a new system of "preventive" indefinite detention for some detainees "who cannot be prosecuted yet who pose a clear danger to the American people," as he said in his May 21 speech at the National Archives. That prospect has sparked a bitter controversy among legal and national security experts over who would be detained, the legality of such detention, and the implications for the national security of the United States.

"Indefinite detention without trial is a hallmark of abuse," Sen. RussFeingold (D-Wis.) wrote in a letter to Obama the day after Obama'sspeech. On Tuesday morning, Feingold convened a hearing of the Senate Judiciary Committee's Subcommittee on the Constitution to further explore the issue.

Witnesses debated the legality of detaining suspected terrorists picked up around the world - as opposed to detaining "combatants" on a clear "battlefield," as international law allows. But much of the hearing's testimony focused on how a policy of indefinite detention of suspects who are presumed "dangerous," yet the United States refuses to try as criminals, will affect the nation's moral standing in the world and its ability to fight al-Qaeda.

Sen. Tom Coburn (R-Okla.), the ranking Republican on the subcommittee, presented the GOP'sposition by emphasizing that in Hamdi v. Rumsfeld, the Supreme Court "allowed for the indefinite detention of enemy combatants without trial" and praised Obama for embracing that power.

But others noted that the Hamdi ruling is not nearly that broad, and argued that the indefinite or "preventive" detention of suspects seized around the world has no precedent in international law.

Sarah Cleveland, professor of human and constitutional rights law at Columbia Law School, testified that Hamdi v. Rumsfeld only allowed "states to apprehend enemy troops in a traditional conflict and to hold them until the end of that conflict." The only issue in that case, she said, was the detention of an armed combatant in the U.S. war with the Taliban-led Afghan government, which was a traditional international conflict.

But the U.S. government has also claimed "a roving power to detain persons seized outside a traditional theater of combat," and that claim "has brought the United States widespread international condemnation, eroded our moral authority, and inspired new converts to terrorism," testified Cleveland.

One major difficulty in the current situation is identifying the "battlefield" in a global war on terror and deciding who is a "combatant" in it. That's something that the administration has been struggling with in a host of individual habeas corpus cases pending in federal court - most of which, it has lost, as the government has been unable to present sufficient evidence that the suspect imprisoned at Guantanamo Bay for years was actually a member of al-Qaeda or the Taliban, or any associated forces fighting the United States.

A newly authorized system of preventive detention would seek to avoid such court losses.

The idea that the United States must prosecute combatants is "myopic to put it gently," said DavidRivkin, a lawyer in the Reagan and Bush administrations and now a partner in the firm Baker &Hostetler.  "It is virtually impossible to obtain the sort of evidence necessary [for a prosecution] in a battlefield," he said. "You're not going to run a CSI Kandahar ... to me the notion that there's this other alternative of prosecuting them is not possible. We cannot fight this war if we're not going to have a military paradigm."

The tension between whether the United States is fighting a "war" or trying to track down and prosecute violent criminals has created a rift -- with human rights advocates and some military and national security experts on one side, and the Obama administration, which on this issue seems aligned more closely with Congressional Republicans, on the other.

Elisa Massimino, executive director of Human Rights First, testified that senior military officials recently warned that the president's plan for military commissions and preventive detention would undermine international confidence in the American judicial system and provide more fodder for the United States' enemies.

"The Guantanamo detentions have shown that assessments of dangerousness based not on overt acts, as in a criminal trial, but on association are unreliable and will inevitably lead to costly mistakes," she said. "This is precisely why national security preventive detention schemes have proven a dismal failure in other countries. The potential gains from such schemes are simply not great enough to warrant departure from hundreds of years of western criminal justice traditions."

Cleveland similarly testified that "prolonged detention of non-battlefield detainees is viewed as illegitimate by the advanced democracies who are our allies and undermines their cooperation with our global counterterrorism efforts."

"No other European or North American democracy has resorted to long-term detention without charge outside of the deportation context," Cleveland said. "Our closest allies--including the United Kingdom, France, Spain, Germany, Australia, and Canada--do not resort to such detention. ... Among advanced democracies, only Israel and India have adopted long-term detention systems for terrorism suspects. Both regimes are highly controversial, and the U.S. State Department consistently has criticized the practices of both countries."

Tom Malinowski, Washington Advocacy Director of Human Rights Watch, emphasized that the military paradigm accords terrorists the undeserved dignity of being "warriors" against what is, in their minds, an evil empire. "Anytime we treat these detainees as something special," he said, "we are actually reinforcing their narrative, their story about who they are, global warriors in a global struggle," he said. "It's a narrative the helps them recruit more people to their hateful cause."

He warned that it also creates a dangerous precedent for other countries.

"Russia sees anyone who stands up to its authority in the Caucasus as a terrorist," he said. "Would we be comfortable if we accepted the idea that Russia could detain or kill anyone in the world who threatens their rule in the Caucasus? Or if the Chinese go around the world rounding up Uighursbecause they're suspected of being engaged in war on terror against China?"

To which Rivkin retorted: "Just because a bunch of hypocritical politicians in Russia or China or Egypt claim to be inspired by our example does not make it so."

The witnesses all appeared to agree, however, that the issue is urgent and extends far beyond the situation of the 240 prisoners at Guantanamo Bay.

As Richard Klinger, a former Bush administration lawyer testified, the U.S. military is already detaining thousands of suspected al-Qaeda and other alleged terrorist supporters around the world. "The debate over indefinite detention often wrongly focuses on Guantanamo Bay," he said. "The current practice is considerably more widespread, and any limitations on indefinite detention would have correspondingly wide implications."

Which of the U.S. military's detentions are legitimate, and what kind of new detention scheme can be created and justified by the Obama administration, are core questions that Congress, the courts and the president will be called on to answer in the coming months.