May 22, 2009
President Obama's Position on Detention Authority and Respect for the Courts
President Obama in his national security speech yesterday identified five categories of detainees in the conflict against terrorists: those who can be tried in Article III courts for violations of U.S. law; those who can be tried in military commissions for violations of the law of war; those who have been ordered released by the courts; those who can be transferred to other countries; and those who pose a continuing threat to the United States, but cannot be tried in Article III courts or military tribunals (presumably because the government couldn't get a conviction).
According to President Obama, this fifth category--those "who pose a clear danger to the American people"--"is the toughest single issue that we will face."
The administration is clearly, er, struggling with this. On March 13, it filed in the habeas cases in the District Court for D.C. a proposed definition of detainable individuals at Guantanamo Bay--which presumably also reflects the administration's position for detention of these individuals outside Guantanamo Bay--that purported to respect the authority and bounds set by the AUMF, international law, and U.S. courts. Here's that proposed definition:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
Three district court judges have now ruled on this definition. (Judge Royce Lamberth ruled just yesterday.) Two of them--Bates and Lamberth--ruled that the administration's proposal to detain those who "substantially supported" terrorist organizations and those who "directly supported hostilities" fell outside the bounds of the AUMF and the laws of war. The third, Walton, read the "substantial support" portion of the definition most narrowly to avoid this problem.
On the same day that Lamberth wrote--and just two days after Bates wrote--President Obama claimed in his national security speech, teeming with references to "the rule of law" and respect for the coordinate branches of government, that his administration could detain this fifth class of individuals, those who pose a threat to the United States, but can't be convicted in court. Here's what he said:
[T]here 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.
This last example doesn't even fit within the administration's proposed definition to the D.C. District Court, much less within the judges' rulings on the proposed definition. And while expressing allegiance to Osama bin Laden may have fit within the adminsitration's proposed definition, it doesn't square with the rulings of at least two judges, both of whom ruled the same week as the speech.
The speech, to be sure, was just a speech; it wasn't a court filing or the final report from the administration's Special Task Force on Detention Policy. But it seems to reflect, once again, an administration claiming respect for the courts and the law, but acting as though it has much broader authority.
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