First test of Obama detention doctrine
on Mar 23, 2009 at 11:07 pm
Analysis
The Obama Administration’s newly crafted claim of government power to detain terrorism suspects underwent its first courtroom test on Monday, and appeared likely to get at least qualified endorsement by at least one judge. A two-hour hearing in U.S. District Court focused mainly on what Congress meant nearly eight years ago in its first response to the 9/11 terrorist attacks, and on what the Supreme Court meant in 2004 in its first ruling in a modern detention case (Hamdi v. Rumsfeld).
Despite a sharply worded attack by two lawyers for detainees, U.S. District Judge Reggie B. Walton displayed skepticsm that the Administration’s doctrine went as far as the lawyers’ criticism had suggested. He told one attorney that the position being taken by detainees’ counsel would “put our nation at risk; you want the United States to fight Al-Qaeda with its hands tied behind its back.”
Peter B. Ellis, a detainees’ lawyer from Boston, asserted that the government “wants to expand the categories of people who may be detained” beyond what international law would allow. “Congress might do that, but it hasn’t done that in a constitutionally valid way,” Ellis added.
Judge Walton, however, countered: “What you’re saying is that there are a lot of people Congress was trying to reach [in the 9/11 Resolution in 2001] who wouldn’t be.”
The judge did, however, indicate that he probably would not uphold authority to detain an individual solely because that person had been “a member of” or “part of” the Al-Qaeda terrorism network. He said those words were “so nebulous.” He commented: “I don’t know what ‘membership’ entails.”
Judge Walton implied that, when he completes a written ruling sometime in April, he would spell out “some parameters” on how far detention authority goes, in order to give detainees’ lawyers “something to shoot at” when they challenge the government’s reasons for detention.
Thus, the judge did not appear to accept a Justice Department lawyer’s argument that those who might face detention in the future by the U.S. military should not be told in advance of what limits there are on detention power. “Nothing follows our military forces around the world to tell them who can be detained,” Department attorney Christopher Hardee contended. Those who are engaging in terrorism, Hardee said, are not entitled to “notice” of when they could be rounded up.
One situation in which Hardee conceded that the government might not have detention authority would be an individual, as hypothesized by Judge Walton, who would say “I agree with Bin Ladin and what he did, and I consider myself a part of his organization.” That “could very likely be an impossible case” for the government to justify, the attorney conceded.
It was quite apparent that the judge would not embrace the argument of detainees’ lawyers that the government should be able to capture and hold indefinitely only those who “directly participated in hostiliies” on a combat front, as in Afghanistan.
Terrorists, the judge said, might leave battlefields, as in Afghanistan, and move to other areas where they could plan and launch “attacks on the U.S. from there.”
Walton repeatedly suggested that when Congress soon after the 9/11 attacks adopted the Authorization for Use of Miliary Force, it meant that the full range of military force could be used against Al-Qaeda and the Taliban, “and implicit in the use of force is the ability to detain.” If international law only involves a specific kind of armed conflict to justify detention, the judge commented, Congress may have wanted to made that understanding part of U.S. domestic law as it applied to terrorism suspects.
Lawyers on both sides of Monday’s argument sparred repeatedly over whether the Supreme Court’s Hamdi decision five years ago supports their side in the current debate over detention policy.
J. Wells Dixon, a detainees’ lawyer from New York City, interpreted that ruling as dealing only with authority to detain in an active battlefield zone. While the 9/11 resolution did authorize the use of force, the Supreme Court made clear that “the right to use force and to detain are not the same,” Dixon said.
Hardee responded that the Hamdi ruling made clear that “detention is a necessary incident of the use of force.”
As the lawyers were debating Monday in Walton’s courtroom on one floor of the courthouse, attorneys for detainees and for the Justice Department filed new briefs with the D.C. Circuit Court on another floor, continuing their written debate over whether U.S. courts may consider a damages lawsuit against Pentagon officials for authorizing torture of detainees at Guantanamo Bay.
This was the second round of briefs as the Circuit Court considers claims by four Britons, no longer at Guantanamo, that they were tortured, and that the torture and religious bias violated their constitutional rights, based on long-standing legal principles.
In their new brief, the detainees urged the Circuit Court to rule directly on their constitutional claim, rather than simply throwing out the case on the ground that the Pentagon officials were legally immune to such lawsuits. The Obama Administration’s new brief urged the Court not to take on the constitutional claim, but simply to end the case promptly on the immunity issue.
The detainees’ brief is available here and the government’s brief is available here.
