Obama's Right: A Preventive Detainee is simply a P.O.W.

Quite a bit of negative commentary, particular from attorney's such as Jesselyn Raddack and Glenn Greenwald has come down in stomp-footed opposition to Obama's plan to implement "Preventative Detention", meanwhile those on the Right continue to pull their hair out over the idea of "Terrorists released on American streets".

Both positions may in fact be an extreme over-reaction, while Obama's own Solomon-like path of splitting the difference may actually be our nation's only real choice under Geneva, the Constitution and the Law.

First we have to recall where have previously been to better understand where Obama is going. Under President Bush, the protections of Geneva were blatantly rejected by executive fiat. This meant that the tenets of the Army Field Manual, which were based on Geneva were undermined and our troops left without a coherent detention strategy leading to widespread abuses at Bagram A.F.B. and throughout Iraq. Eventually The U.S. established a set of secret detention centers specifically intended to avoid the Geneva mandate of oversight by the International Red Cross, where a program of coercion and torture was implemented to get the answers the Administration wanted, particularly concerning links between Saddam Hussein and 9-11.

In 2006 the Supreme Court overruled Bush's claim that Geneva did not apply with the Hamdan v Rumsfeld decision which meant that all of the previous actions of the Administration at the CIA Black Sites and elsewhere could now fall under 18 USC 2441 for War Crimes prosecution. Bush responded by closing the illegal Black Sites and moving their detainees to GITMO, then quickly pushing through the Military Commissions Act which revoked the protections of habeas corpus for "Alien Enemy Combatants", allowed the use of coerced and self-incriminating testimony (gained via torture), and via "hearsay" in a new Military Commission Trial System.

In 2008 the Supreme Court just as they has previously restored Geneva protections, restored Habeas Corpus to detainees and invalidated Section 7 of the Military Commissions Act with the Boumedian v Bush decision. It held in restoring habeas that...

“to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is'.

So unlike what was claimed by Bush, Obama finds himself in a landscape that must abide not only by the Constitution and Geneva but also Habeas for all detainees.
least of all indefinitely without the option of Habeas Review by a court.

In light of these realities Obama outlined five possible options for the disposition of current GITMO detainees.

1. Transfer to U.S. Civilian Courts for Trial.

This option in the past has led to the successful prosecution and incarceration of Ramzi Yusef (The Original WTC Bomber), the "Blink Sheik", Zacarias Moussaoui (The "20th" Hijaker"), Timothy McVeigh, Eric Rudolph (The Olympic Park Bomber), and Ted Kasczinki (the Unibomber) all of whom are being currently held at the Florence Supermax Correctional Facility in Colorado.

No One Has Ever Escaped from a Supermax.

On April 30, 2009 Ali Saleh Kahlah al-Marri, who had been held for the previous six years at the Naval Brig in Charleston without charge, pleaded guilty to charges of conspiracy and terrorism after being transferred by the Obama Administration into the civilian courts and is now being held at the Federal Facility at Pekin, Illinois awaiting sentencing.

The Obama administration plans to follow this trend by bringing charges against another al Qaeda suspect for the 1998 East Africa bombings which killer over 200 Americans.

Despite all the frenzied chest beating, this option has worked fine. America has the best prison system in the world, and is already holding al Qeada inmates - adding another hundred or so is not going to end civilization as we know it.

2. Try Suspects as War Criminals in Military Court

Unlike those who may have committed crimes against Civilians and Non-Combatants, it seems perfectly appropriate to try those who have perpetrated crimes against our troops on the battle field, or civilians in a war zone. Some may say that "there are no Rules in War" however the fact is there have been very clear and definite rules since the Ratification of Geneva in 1949. Under Geneva these would include...

"violations of the laws or customs of war"; including but not limited to "murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps", "the murder or ill-treatment of prisoners of war", the killing of hostages, "the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity".

A Courts Martial of Military Criminals is entirely appropriate if the circumstances warrant, and as Obama has noted the previous flaws from the Bush Military Commission System will not - and frankly CAN NOT vis SCOTUS - be included.

The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

Now, some have suggested that this represents a reversal on my part. They should look at the record. In 2006, I did strongly oppose legislation proposed by the Bush administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process rights for the accused that could stand up on appeal.

I said at that time, however, that I supported the use of military commissions to try detainees, provided there were several reforms, and in fact there were some bipartisan efforts to achieve those reforms. Those are the reforms that we are now making. Instead of using the flawed commissions of the last seven years, my administration is bringing our commissions in line with the rule of law. We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify.

3. Detainees who have been ordered to be released by the Courts

Amazingly some on the right would argue that the Adminstration ignore a Court Order to release a detainee against whom the evidence is insufficient. Obama has rejected that view.

Now, let me repeat what I said earlier: This has nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have spoken. They have found that there's no legitimate reason to hold 21 of the people currently held at Guantanamo. Nineteen of these findings took place before I was sworn into office. I cannot ignore these rulings because as President, I too am bound by the law. The United States is a nation of laws and so we must abide by these rulings.

Whether GITMO stays open or not, these 21 people must legally be released - the problem for some of them however is "to where"? A problem which still plagues the Uighurs, Chinese Muslims who would most likely face persecution if released to that nation but like Boumedienne - a Serbian who was ultimately released to France - an alternative arrangement may eventually be made available. Which leads to the next category.

4. Transferral of Detainees to other Jursidictions.

The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved 50 detainees for transfer. And my administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

This isn't setting them free, Bush did this with numerous detainees such as Ibn Shayhk al-Libi who was transferred to Egypt and eventually to Libya. He also rendered innocent persons such as Abu Omar and Maher Arar who was transferred to Syria. The difficulty here is that both Omar and Arar were completely innocent and actually apprehended by mistake - and all three individuals were tortured in those countries. Like the case of the Uighurs simply shipping people off to other countries without careful thought or planning could prove disastrous, but extradition is an option that should clearly be pursued and could be successful with careful planning.

And then there is the most controversial category.

5. Detainees who can not be prosecuted, but remain AT WAR with the United States

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

In the most simple terms, these people are Prisoners of War and can potentially be held "until hostilities cease". The controversy here is that this is war the in some ways can not be either one or lost, ever. As Glenn Greenwald argues...

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "Prisoners of War" to be held without trials, that argument was deeply misleading. And it's no less misleading when made now by Obama supporters. That comparison is patently inappropriate for two reasons: (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting. The potential for error and abuse in deciding who was a "combatant" was thus minimal. By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc. Instead, many of them are picked up from their homes, at work, off the streets.

I think that Greenwald, and I am frankly loathe to disagree with Glenn as I respect him greatly and consider his work an inspiration for my own, is just simply wrong here. At the beginning of any armed conflict, it is never really known exactly when hostilities will end. Israel has essentially remained in a constant state of war for decades. The "Troubles" in Northern Ireland were of a similar extended nature.

It should also noted that nearly two years ago in 2007 the newly minted commander in Afghanistan, Gen McChrystal officially announced that al Qaeda in Iraq has been Defeated. Iraq still has lots of problems but that conflict has ended. Abu Musab al-Zarqawi, the head of AQI, is dead.

There may indeed be a point in time where this may also be true of Senior Leadership of Al Qaeda in Pakistan and Afghanistan, where they are either captured or killed and their ability to function as an effective international terrorist enterprise is diminished to point of irrelevance. In fact - This Should be Our Goal. The difficulty in attaining that goal should be lost on no-one, but neither should it lead us to making choices that defy common sense and allowing enemy assets to return to the battlefield during an active conflict.

The second part of his assumption I think ignores both Obama's specific comments and the reality of the situation is that these would not be people "picked up from their homes, at work, or off the streets" since these locations can not honestly be called the "battlefield." Those people would be, and should be handled as criminal suspects and processed through the civilian courts as Obama describes under option 1.

What we're really talking in this scenario would be Taliban, Al Qeada and Insurgent fighters who have been caught on the battlefield, planting IEDs or otherwise in the act of attacking our troops. Again the case of Insurgents is also instructive here. as at one point we would have never considered the idea of a cease fire let alone open cooperation with those who had previously been fighting with in the Sunni Triangle. Today things are different, and consequently the Military need to hold these prisoners would similarly change over time.

Also the greatest protection against possible abuse of this policy, would be to ensure that the decision does not rest in just one set of hands just as Obama has described.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category.

President Bush reserved the sole right to pluck someone off the street, even an American Citizen such as Jose Padilla, and hold them without charge or without judicial review.

Those days are over.

Any potential Prisoner of War or detainee under Boumedienne must now be afforded Habeas review, even if the Administration thinks they may remain an "ongoing threat" they're going to have to provide some evidence of this assertion before a court although evidence of a specific civilian or war crime on their part may be either lacking or tainted.

Further as a result of the precedent set by Hamdan (although the SCOTUS offered no opinion on this point), it could be argued that Geneva protections should also apply and before the administration could even relegate someone to P.O.W. status they would need to have this confirmed by a Competent Tribunal under Article 5.

Under U.S. military regulations, a Tribunal would be composed of:

Three commissioned officers; a written record of proceedings; proceedings shall be open with certain exceptions; persons whose status is to be determined shall be advised of their rights at the beginning of their hearings, allowed to attend all open sessions, allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal, and to have a right to testify; and a tribunal shall determine status by a preponderance of evidence.[2]

Possible determinations are:

1. Enemy Prisoner of War.
2. Recommended Retained Personnel (RP), entitled to EPW protections, who should be considered for certification as a medical, religious, or volunteer aid society RP.
3. Innocent civilian who should be immediately returned to his home or released.
4. Civilian Internee who for reasons of operational security, or probable cause incident to criminal investigation, should be detained

Bush had previously established "Combat Status Review Tribunals" to fill this requirement, but studies by the Seton Hall found the 92% of GITMO detainees were not in fact "Enemy Combatants" and that the Bush CSRT were essentially Kangaroo Courts biased to find guilt in nearly all cases. Ultimately Boumedienne invalidated the Bush CSRT process, so a new, and fair process in line with Geneva and the Code of Military Justice needs to be constituted. One which mandates periodic status review updates for all persons ultimately declared as having P.O.W. status for the ongoing War as circumstances within that conflict continue to shift and change overtime. Think of it as a "parole hearing" to determine if the person remains a threat and either repatriate or retain them as appropriate. This would not be the Obama Administration's decision, but one based on the available facts and circumstances at the time by an independent judge or judicial panel on a case by case basis.

In short "Preventative Detention" of a P.O.W. might not ultimately be Permanent Detention nor should be it something that any President or Administration should be able to legally implement without oversight from the courts or Congress. Doing this may require a new POW or Military Tribunal Act, but it can be done. Russ Feingold is already demanding hearings and testimony based on Obama's Speech.

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.

Feingold's concerns aer well founded considering the history of Bush Administrations handling of detainees, but the U.S. has held prisoners of war without charge and without trial in every war that we've engaged in since the formation of the Union. It doesn't mean they'll be held forever, it does not violate the law, the constitution or Geneva, but it will need to be done with the consultation and understanding of Congress.

With rational and legal protections in place, we can ensure a framework which both protects the rights of the accused from unwarranted and unreasonable detention and protects the American people from those who would continue to wage violence and war against them through the weapons of terror.

It's not a Hobson's Choice of protecting Americans vs protecting Terrorist Suspects, we have to do both - protect the innocent (all of them) as well as punish the guilty using the best legally obtained evidence and facts.

Vyan