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The War Profiteers - War Crimes,
Kidnappings & Torture |
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June 27th,
2009 - White House Weighs Order on Detention |
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White House Weighs Order on
Detention Officials: Move Would Reassert Power To Hold Terror Suspects
Indefinitely By Dafna Linzer & Peter Finn Washington Post June 27, 2009 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. Such an order would embrace
claims by former president George W. Bush that certain people can be detained
without trial for long periods under the laws of war. Obama advisers are
concerned that an order, which would bypass Congress, could place the
president on weaker footing before the courts and anger key supporters, the
officials said. After months of internal
debate over how to close the military facility in Cuba, White House officials
are increasingly worried that reaching quick agreement with Congress on a new
detention system may be impossible. Several officials said there is concern
in the White House that the administration may not be able to close the
prison by the president's January deadline. White House spokesman Ben
LaBolt said that there is no executive order and that the administration has
not decided whether to issue one. But one administration official suggested
that the White House is already trying to build support for an order. "Civil liberties groups
have encouraged the administration, that if a prolonged detention system were
to be sought, to do it through executive order," the official said. Such
an order could be rescinded and would not block later efforts to write
legislation, but civil liberties groups generally oppose long-term detention,
arguing that detainees should be prosecuted or released. The Justice Department has
declined to comment on the prospects for a long-term detention system while
internal reviews of Guantanamo detainees' cases are underway. One task force,
which is assessing detainee policy, is expected to complete its work by July
21. In a May speech, President
Obama broached the need for a system of long-term detention and suggested
that it would include congressional and judicial oversight. "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," he said. Some of Obama's top legal
advisers, along with a handful of influential Republican and Democratic
lawmakers, have pushed for the creation of a "national security
court" to supervise the incarceration of detainees deemed too dangerous
to release but who cannot be charged or tried. But the three senior
government officials said the White House has turned away from that option,
at least for now, because legislation establishing a special court would be
difficult to pass and likely to fracture Obama's party. These officials, as
well as others interviewed for this article, spoke on the condition of
anonymity because they were not authorized to speak publicly about internal
deliberations. On the day Obama took
office, 242 men were imprisoned at Guantanamo. In his May speech, the
president outlined five strategies the administration would use to deal with
them: criminal trials, revamped military tribunals, transfers to other
countries, releases and continued detention. Since the inauguration, 11
detainees have been released or transferred, one prisoner committed suicide,
and one was moved to New York to face terrorism charges in federal court. Administration officials
said the cases of about half of the remaining 229 detainees have been
reviewed for prosecution or release. Two officials involved in a Justice
Department review of possible prosecutions said the administration is
strongly considering criminal charges in federal court for Khalid Sheik
Mohammed and three other detainees accused of involvement in the Sept. 11,
2001, attacks. The other half of the cases,
the officials said, present the greatest difficulty because these detainees
cannot be prosecuted in federal court or military commissions. In many cases
the evidence against them is classified, has been provided by foreign intelligence
services or has been tainted by the Bush administration's use of harsh
interrogation techniques. Attorney General Eric H.
Holder Jr. agreed with an assessment offered during congressional testimony
this month that fewer than 25 percent of the detainees would be charged in
criminal courts and that 50 others have been approved for transfer or
release. One official said the administration is hoping that as many as 70
Yemeni citizens will be moved, in stages, into a rehabilitation program in
Saudi Arabia. Three months into the
Justice Department's reviews, several officials involved said they have found
themselves agreeing with conclusions reached years earlier by the Bush
administration: As many as 90 detainees cannot be charged or released. The White House has spent
months meeting with key congressional leaders in the hope of reaching
agreement on long-term detention, although public support for such a plan has
wavered as lawmakers have sought to prevent detainees from being transferred
to their constituencies. Lawyers for the
administration are now in negotiations with Sens. Carl M. Levin (D-Mich.) and
Lindsey O. Graham (R-S.C.) over separate legislation that would revamp
military commissions. A senior Republican staff member said that senators
have yet to see "a comprehensive, detailed policy" on long-term
detention from the administration. "They can do it without
congressional backing, but I think there would be very strong concerns,"
the staff member said, adding that "Congress could cut off funding"
for any detention system established in the United States. Concerns are growing among
Obama's advisers that Congress may try to assert too much control over the
process. This week Obama signed an appropriations bill that forces the
administration to report to Congress before moving any detainee out of
Guantanamo and prevents the White House from using available funds to move
detainees onto U.S. soil. "Legislation could kill
Obama's plans," said one government official involved. The official said
an executive order could be the best option for the president at this
juncture. Under one White House draft
that was being discussed this month, according to administration officials,
detainees would be imprisoned at a military facility on U.S. soil, but their
ongoing detention would be subject to annual presidential review. U.S.
citizens would not be held in the system. Such detainees - those at
Guantanamo and those who may be captured in the future - would also have the
right to legal representation during confinement and access to some of the
information that is being used to keep them behind bars. Anyone detained
under this order would have a right to challenge his detention before a
judge. Officials say the plan would
give detainees more rights and allow them a better chance than they have now
at Guantanamo to one day end their indefinite incarceration. But some senior Democrats
see long-term detention as tantamount to reestablishing the Guantanamo system
on U.S. soil. "I think this could be a very big mistake, because of how
such a system could be perceived throughout the world," Sen. Russell
Feingold (D-Wis.) told Holder. One administration official
said future transfers to the United States for long-term detention would be
rare. Al-Qaeda operatives captured on the battlefield, which the official
defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would
be held in battlefield facilities. Suspects captured elsewhere in the world
could be transferred to the United States for federal prosecution, turned
over to local authorities or returned to their home countries. "Going forward, unless
it's an extraordinary case, you will not see new transfers to the U.S. for
indefinite detention," the official said. Instituting long-term
detention through an executive order would leave Obama vulnerable to charges
that he is willing to forsake the legislative branch of government, as his
predecessor often did. Bush's detention policies suffered defeats in the
courts in part because they lacked congressional approval and tried to
exclude judicial oversight. "There is no statute
prohibiting the president from doing this through executive order, and so far
courts have not ruled in ways that would bar him from doing so," said
Matthew Waxman, who worked on detainee issues at the Defense Department
during Bush's first term. But Waxman, who waged a battle inside the Bush
administration for more congressional cooperation, said that the "courts
are more likely to defer to the president and legislative branch when they
speak with one voice on these issues." Tawfiq bin Attash, who is
accused of involvement in the bombing of the USS Cole in 2000 and who was
held at a secret CIA prison, could be among those subject to long-term
detention, according to one senior official. Little information on bin
Attash's case has been made public, but officials who have reviewed his file
said the Justice Department has concluded that none of the three witnesses
against him can be brought to testify in court. One witness, who was jailed
in Yemen, escaped several years ago. A second witness remains incarcerated,
but the government of Yemen will not allow him to testify. Administration officials
believe that testimony from the only witness in U.S. custody, Abd al-Rahim
al-Nashiri, may be inadmissible because he was subjected to harsh
interrogation while in CIA custody. "These issues haven't
morphed simply because the administration changed," said Juan Zarate,
who served as Bush's deputy national security adviser for counterterrorism
and is now at the Center for Strategic and International Studies in
Washington. "The challenge for the
new administration is how to solve these legal questions of preventive
detention in a way that is consistent with the Constitution, legitimate in
the eyes of the world and doesn't create security loopholes that cause
Congress to worry," Zarate said. ProPublica is an
independent, nonprofit newsroom that produces investigative journalism in the
public interest. Washington Post staff researcher Julie Tate contributed to
this report. External link: http://www.washingtonpost.com/wp-dyn/content/article/2009/06/26/AR2009062603361_pf.html |