Guantánamo and Beyond: A Blog on Executive Detention, National Security and Due Process

by Stephen C. Lessard, Esq.

Two remaining Guantánamo Bay detainee cases provide an opportunity for the Supreme Court to review the way lower courts have implemented its constitutional declarations in its 2008 decision, Boumediene v. Bush, on the legal rights of detainees at Guantánamo and the role of the judiciary as a check on Executive power. One of those cases, Al-Bihani v. Obama, was filed May 16, 2011 and seeks to test the scope of the Executive's detention power. Specifically, Al-Bihani argues that the international laws of armed conflict apply to determine the scope of who may be detained under the 2001 Authorization for Use of Military Force ("AUMF") enacted by Congress.

Both President George W. Bush and President Barack Obama have claimed authority under the AUMF to indefinitely detain persons illegally carrying out attacks on the United States and that such persons are not protected as prisoners of war under the Geneva Conventions. The AUMF provides that the President is authorized to use all necessary and appropriate force against those persons or organizations he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such persons or organizations.

Al-Bihani's petition asks the Supreme Court to reverse the D.C. Circuit Court of Appeals and rule that the President's detention power applies only to individuals who actually engaged in armed action against the United States and not to an individual simply because he had some ties to a terrorist organization. The D.C. Circuit, in ruling that simply being a part of a terrorist network is enough to justify detention, stated that relying on the international laws of war to determine the scope of the President's detention power is "inapposite and inadvisable." That ruling is from a case involving al-Bihani's brother, who was part of a fighting force and carried a weapon.

Al-Bihani claims he was a civilian who was not part of a hostile fighting force; he was merely a cook for the Taliban who never carried a weapon and was captured in Iran. Al-Bihani argues that under the international laws of armed conflict, he is a civilian because he has not given up the protections of that status by direct and active participation in hostilities. Al-Bihani cites to the 1949 Second Additional Protocol to the Geneva Conventions, which provides that civilians shall not be the object of attack unless and for such time as they take a direct part in hostilities. Al-Bihani acknowledges that senior terrorist leaders, by virtue of their leadership positions, should always be considered to be taking a direct part in hostilities or the planning of combat operations and, therefore, are always combatants.

Al-Bihani's petition argues that the D.C. Circuit's standard allows for the indefinite detention of an individual based solely on his being part of' a terrorist group, without regard to whether the individual in question ever personally engaged in hostilities against the United States. Al-Bihani contends that the AUMF does not support the presidential claim of authority for indefinite detention but, rather, the President can only legitimately justify detention by reference to the international laws of armed conflict.

However, Al-Bihani makes no mention of U.S. law that makes it a crime merely to act in support of terrorist organizations. He also fails to distinguish the traditional notion of an international armed conflict (hostilities between two or more countries) and what has come to be viewed by some commentators as a non-international armed conflict (hostilities between a country and a non-country). In the case of a non-international armed conflict, some argue that the international laws of armed conflict are not applicable.

Al-Bihani probably will not be ready until the Supreme Court's next term. The U.S. Justice Department has been asked to respond to the petition by June 10.

For this blog's sources and more information, see:

UPI.com - Michael Kirkland, I'm Not a Terrorist; I'm Just the Piano Player (May 29, 2011)

SCOTUSblog - Lyle Denniston, Down to the Last Detainees (May 23, 2011)

SCOTUSblog - Lyle Denniston, New Try on Guantánamo Detention (May 18, 2011)

Lawfare - Larkin Reynolds, Cert. Petition Filed in Toffiq Al Bihani (May 16, 2011)

Lawfare - Robert Chesney, Do the Laws of War Speak Clearly Enough on "Continuous Combat Function" to Justify a Narrow Reading of the AUMF? (May 16, 2011)

by Stephen C. Lessard, Esq.

On October 3, Senate Majority Leader Harry Reid (D-NV) vowed to block a vote on this year's National Defense Authorization Act (the "NDAA") because of provisions in the bill that the Obama administration says will tie its hands when dealing with terrorism suspects. Senator Reid explained his move on the Senate floor, noting that the authorization bill contains provisions relating to the detention of terrorism suspects that in the words of National Security Adviser John Brennan would be "disastrous" and would "tie the hands of our counterterrorism professionals by eliminating tools and authorities that have been absolutely essential to their success." The next day, Senator Reid sent a letter to the Armed Services Chairman Carl Levin (D-MI) and Ranking Member John McCain (R-AZ) informing them that he didn't intend to bring the NDAA to the floor until it was stripped of the detention provisions. Reid specifically objected to the authorization of indefinite detention, the requirement for mandatory military custody of terrorism suspects, and the stringent restrictions on transfer of detainees.

Support for Senator Reid's position has been voiced by military and legislative sources. On October 7, a nonpartisan group of 23 retired generals and admirals sent a letter to Senator Reid warning that the defense bill would "authorize the indefinite detention without trial of terrorism suspects, including American citizens captured on U.S. soil--a policy that is contrary to the very American values needed to win this fight." Pentagon General Counsel Jeh Johnson made statements on October 18 in opposition to troubling provisions in the NDAA and urged Senator Reid to stand firm in refusing to bring the bill to the floor unless the controversial measures are removed.

In a letter sent to Senator Reid on October 21, several Democratic members of the Judiciary Committee and the Select Committee on Intelligence asked Senator Reid to work toward ensuring that the annual defense authorization bill does not contain provisions that would outlaw trials for terrorist suspects in federal courts, and make permanent strict requirements for transferring prisoners out of Guantánamo Bay. In addition to arguing that the provisions could interfere with counterterrorist operations by federal law enforcement officials, the senators also claimed that the provisions could allow for the indefinite detention of American citizens without charge or trial.

Human Rights Watch, along with the American Civil Liberties Union and Human Rights First, recently urged Congress to reject the provisions in the defense spending bill that would permit long-term indefinite detention without trial of terrorism suspects. The groups released a video on October 24 showing that such legislation would repeat broadly recognized mistakes of the past, making reference to the detention of American citizens with Japanese heritage during World War II and the Emergency Detention Act passed in 1950, during the rise of McCarthyism, authorizing detention of people who had not actually committed any act but who would "probably" engage in "acts of espionage or of sabotage."

Brigadier General David R. Irvine, who taught prisoner of war interrogation and military law at the Sixth U.S. Army Intelligence School, views the proposed legislation as the militarization of the U.S. justice system. He believes the push to militarize the judicial system may spring from "a distrust of presumably squishy judges or an assumption that the nation must wage a military war on terror." He also fears that passage of such legislation will "bolster the claims of tyrants that their tools--military tribunals and imprisonment without criminal charges--are, indeed, a society's only sure protection."

However, New Hampshire Republican freshman Senator Kelly Ayotte was not deterred by Senator Reid's action blocking her amendment to the NDAA that would have barred the government from spending money to try enemy combatants. She is now pursuing an amendment to the bill that would make federal trials more difficult by creating a presumption that the military, not civilian authorities, should hold suspected al Qaeda members. Senator Ayotte said the measure would help move the administration away from civilian trials and allow more suspects to be tried in front of military commissions. Senator Ayotte believes the Obama administration has mistakenly "tried to criminalize the war," and that "[t]he priority has to be in these types of cases gathering intelligence" and civilian courts are not "set up for intelligence collection."

The issue has also exposed divisions within the Democratic Party. The Senate Armed Services Committee approved the defense bill in June and the panel, led by Democratic Senator Carl Levin, approved the provision on military custody on a 25-1 vote. Levin has argued that the provision included a national security waiver that the administration could exercise to bypass the requirement.

For this blog's sources and more information, see:

Roll Call - David R. Irvine, Reid Must Block Militarization of Justice System (Oct. 27, 2011)

The Washington Post - Top Dems oppose policy on detaining terror suspects in defense bill, exposes Senate divisions (Oct. 24, 2011)

Main Justice - Samuel Knight, Dems Concerned About Defense Authorization Terrorism Provisions (Oct. 24, 2011)

Trust.org - US: Rights Groups Urge Rejection of Indefinite Detention Legislation (Oct. 24, 2011)

The Wall Street Journal - Julian E. Barnes, Sen. Ayotte Keeps Fighting for Military Trials for Terror Suspects (Oct. 21, 2011)

FtLeavenworthLamp.com - Donna Miles, General counsel calls for flexibility in detainee cases (Oct. 20, 2011)

Human Rights First - Johnson Remarks on Defense Spending Bill Praised, Reid Urged to Stand Firm on Bill (Oct. 18, 2011)

Human Rights First - 23 Retired Military Leaders Praise Reid Leadership on Defense Bill (Oct. 11, 2011)

Think Progress -- Ali Gharib, Reid Blocks Defense Authorization: Terror Provisions Like Indefinite Detention 'Are Just Wrong' (Oct. 5, 2011)

by Hanna F. Madbak, Esq.

Ten years have passed since 9/11 and the opening of Guantánamo, but the effects on our legal system have not faded. Weighed by the trauma from that attack and continuously nudged by political winds and perceived international threats, our society has been more than ever challenged to find a morally defensible balance between liberty and security. Both the Executive and Legislative branches of our government appear to be following a trend favoring the latter over the former.

While President Obama made a campaign promise to close Guantánamo within one year of becoming president, that deadline is more than two years old and 171 prisoners remain detained in Guantánamo, including 89 detainees that have already been cleared for release (and an untold amount remain detained in similar prisons under U.S. custody throughout the world, including at Bagram Air Base in Afghanistan). Recently, the United Nations criticized the White House for failing to close Guantánamo, with human rights chief Navi Pillay voicing deep disappointment that the detention center remains open, and calling for the government to present any credible evidence it has against the detainees and charge them. The failure to close Guantánamo, however, is not exclusively attributable to the President. Both Republicans and Democrats in Congress fiercely opposed and refused to fund the President's plan to close Guantánamo and relocate the detainees to high-security prisons on American Soil.

The President and Congress have had many disagreements over various budgetary issues over the last few years. But they found common ground in passing and signing into law the National Defense Authorization Act (NDAA), giving the Executive branch unprecedented powers to indefinitely detain suspected terrorists, including those that are American citizens. In the NDAA's signing statement, President Obama made yet another promise, that his "Administration will not authorize the indefinite military detention without trial of American citizens." This promise, even if upheld by this and future presidents, does not change the fact that the Executive branch now has the unprecedented authority to void the writ of habeas corpus and deny Americans accused of being al-Qaida "affiliates" their Fifth and Sixth Amendment rights to due process and a speedy and fair trial. "It is a sad moment when a president who has prided himself on his knowledge of and belief in constitutional principles succumbs to the politics of the moment to sign a bill that poses so great a threat to basic constitutional rights," said Kenneth Roth, executive director of Human Rights Watch.

Opinions are divided on how to be secure in a world that is increasingly perceived as unsecure. On one hand, John Yoo, the controversial architect of some of the Bush-era policies after 9/11, claims that the policy of "coercive interrogation" (a.k.a. torture) produced intelligence that led to the capture of Osama Bin Laden. On the other hand, the ACLU's executive director, Anthony Romero, and senior counsel of the bipartisan Constitution Project, Sharon Bradford Franklin, voice concerns about the erosion of checks and balances in our system, and an increasing assertion of executive power without oversight. Speaking at a September 1, 2011 American Constitution Society conference, Gregory Nojeim, senior counsel at the Center for Democracy & Technology, highlighted the increased use of "national security letters" by law enforcement to obtain third-party records concerning individuals without warrants.

This week, thousands of protesters marched on Capitol Hill in Washington D.C. and throughout the country wearing orange prison jumpsuits and black hoods protesting against indefinite detention and torture. But public opinion does not appear to be sufficient to readjust the balance between liberty and security chosen by the Executive and Legislative branches of our government. It remains to be seen whether the Supreme Court will intervene. But it is undeniable that the authority granted to the President through the NDAA directly contradicts the principles upheld by the Supreme Court in Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2648 (2004): "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens . . . It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."