Indefinite Detention and President Obama

Dear Friends,

The third topic addressed in the American Civil Liberties Union report entitled "Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration" (here) is detention.

The report starts out in its usual manner pointing out the hope that we all had in candidate Obama and then in President Obama.  Candidate Obama railed against the Bush Administration policy of detaining people indefinitely without charging them or bring them to trial.  President Obama in his first days in office ordered the closing of Guantanamo within a year and established a panel to review the cases of all the detainees.  The Obama Administration has released some detainees and has moved at least one to the criminal justice system.

Unfortunately, President Obama has moved away from the position that he took as candidate Obama and from the direction that he seemed headed at the beginning of his term of office.   In May, 2009, President Obama acknowledged publicly that he supported indefinite detentions for some detainees.  Here is the Washington Post article on the subject.

Subsequently, the Washington Post reported (here)

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

The Obama Administration has also continued to fight to keep detainees indefinitely even when there is little or no evidence to support the detention.  The ACLU report highlights the case of Hassan al-Odaini who was 17 years old when he was arrested.  He was imprisoned for eight years.  The Obama Administration fought his release, but a federal district court ordered Mr. Hassan released.  The ACLU report reads:

The federal court’s decision, which emphatically ordered Mr. Odaini’s release, revealed that the government itself had repeatedly concluded that he was not a threat, but had instead simply been in the wrong place at the wrong time when Pakistani officials arrested him during a surprise raid of a classmate’s home. While the Obama administration complied with the court’s order and released Mr. Odaini, the case wholly refutes the claim that the administration would indefinitely detain only those “who pose a clear danger to the American people.” It also suggests that the Guantánamo review task force, which completed its work months ago, has not resulted in the release of all innocent prisoners still held at Guantánamo Bay.

The problems of indefinite detentions are not limited to Guantanamo.  The Obama Administration extends the indefinite detention authority to the U.S. prison at Bagram Air Base in Afghanistan and makes this claim of authority not just for people detained in Afghanistan but anybody else that the U.S. detains and then transports to Bagram. As the ACLU report states:

While the Obama administration has improved the military screening procedures in place at Bagram, those procedures still fall far short of basic due process standards. In response to habeas corpus petitions filed by prisoners who had been captured outside of Afghanistan and transferred by the Bush administration to military detention at Bagram Air Base, the government argued that the courts lacked jurisdiction even to hear the prisoners’ challenges, let alone decide their merits, because the prisoners were being detained in a war zone. This was disingenuous bootstrapping: the prisoners had been captured outside the war zone and transferred into it; the government thereafter relied on their presence in the war zone as a basis for avoiding any judicial scrutiny.

The Court of Appeals for the D.C. Circuit sided with the administration, effectively giving the government carte blanche to operate the prison at Bagram without any judicial oversight. Armed with this decision, Obama administration officials have reportedly begun debating whether to use the Bagram prison as a place to send individuals captured anywhere in the world for imprisonment and interrogation without charge or trial.

 The Obama Administration is trying to set up a Guantanamo-like prison in Thomson, Illinois.  By doing so, the Obama Administration would be enshrining the indefinite detention policy in the United States system of justice.   As the ACLU report concludes on this topic,

we fear that if a precedent is established that terrorism suspects can be held without trial within the United States, this administration and future administrations will be tempted to bypass routinely the constitutional restraints of the criminal justice system in favor of indefinite military detention. This is a danger that far exceeds the disappointment of seeing the Guantánamo prison stay open past the one-year deadline. To be sure, Guantánamo should be closed, but not at the cost of enshrining the principle of indefinite detention in a global war without end.

While this concern may at first glance to seem unfounded, there are a couple of recent occurrences that you should keep in mind.  First, you will recall the number of politicians and pundits that claimed that the the underpants bomber and Times Square bomber should be treated as terrorists and not as  criminals under our criminal justice system.  President Obama has resisted these claims, but the pressure is on.  The claim that the President has the ability to direct people to the criminal justice system or to a extra-judicial system of indefinite detentions is a very scary thought.

Second, as we approach the confirmation of Elena Kagan, it is important to note that she supports the claim that the President has the right to indefinitely detain people outside of the criminal justice system.  Here is a paragraph from an article in The New York Times (here):

During her confirmation hearing for solicitor general, Ms. Kagan agreed with a questioner that someone suspected of helping to finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.

As you will see in later posts about the ACLU report, Ms. Kagan has argued for and taken some very problematic positions.  Having her on the Supreme Court and President Obama in the White House does not bode well for the Constitution.

Thank you for reading and please comment,
The Unabashed Liberal