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Obama will bypass Congress to detain suspects indefinitely

By John Byrne

President Barack Obama has quietly decided to bypass Congress and allow the indefinite detention of terrorist suspects without charges.

The move, which was controversial when the idea was first floated in The Washington Post in May, has sparked serious concern among civil liberties advocates. Such a decision allows the president to unilaterally hold “combatants” without habeas corpus — a legal term literally meaning “you shall have the body” — which forces prosecutors to charge a suspect with a crime to justify the suspect’s detention.

Obama’s decision was buried on page A 23 of The New York Times’ New York edition on Thursday. It didn’t appear on that page in the national edition. (Meanwhile, the front page was graced with the story, “Richest Russian’s Newest Toy: An N.B.A. Team.”)

Rather than seek approval from Congress to hold some 50 Guantanamo detainees indefinitely, the administration has decided that it has the authority to hold the prisoners under broad-ranging legislation passed in the wake of Sept. 11, 2001. Former President George W. Bush frequently invoked this legislation as the justification for controversial legal actions — including the NSA’s warrantless wiretapping program.

“The administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban,” the Times‘ Peter Baker writes. “In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.”

Constitutional scholar and Salon.com columnist Glenn Greenwald discussed the policy in a column in May. He warned that the ability for a president to “preventively” detain suspects could mushroom into broader, potentially abusive activity.

“It does not merely allow the U.S. Government to imprison people alleged to have committed Terrorist acts yet who are unable to be convicted in a civilian court proceeding,” Greenwald wrote. “That class is merely a subset, perhaps a small subset, of who the Government can detain. Far more significant, ‘preventive detention’ allows indefinite imprisonment not based on proven crimes or past violations of law, but of those deemed generally ‘dangerous’ by the Government for various reasons (such as, as Obama put it yesterday, they ‘expressed their allegiance to Osama bin Laden’ or ‘otherwise made it clear that they want to kill Americans’). That’s what ‘preventive’ means: imprisoning people because the Government claims they are likely to engage in violent acts in the future because they are alleged to be ‘combatants.’”

“Once known, the details of the proposal could — and likely will — make this even more extreme by extending the ‘preventive detention’ power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a ‘combatant,’” Greenwald continues. “After all, once you accept the rationale on which this proposal is based — namely, that the U.S. Government must, in order to keep us safe, preventively detain “dangerous” people even when they can’t prove they violated any laws — there’s no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly ‘dangerous’ combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S.”

The Obama Administration appears to have embraced “preventive detention” in part because of problems with how Guantanamo prisoners’ cases — and incarceration — were handled under President Bush. Military prosecutors have said that numerous cases could not be brought successfully in civilian courts because evidence was obtained in ways that wouldn’t be admissible on US soil. The Bush Administration originally sought to try numerous detainees in military tribunals, but the Supreme Court ruled that at least some have the rights to challenge their detention in US courts.

Baker notes that Obama’s decision to hold suspects without charges doesn’t propose as broad an executive authority claimed by President Bush.

“Obama’s advisers are not embracing the more disputed Bush contention that the president has inherent power under the Constitution to detain terrorism suspects indefinitely regardless of Congress,” Baker writes.

In a statement to Baker, the Justice Department said, “The administration would rely on authority already provided by Congress [and] is not currently seeking additional authorization.”

“The position conveyed by the Justice Department in the meeting last week broke no new ground and was entirely consistent with information previously provided by the Justice Department to the Senate Armed Services Committee,” the statement added.

Roughly 50 detainees of the more than 200 still held at the US prison at Guantanamo Bay, Cuba are thought to be affected by the decision.

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Press reports have revealed that the Obama administration is considering the creation of a prison and court complex on US soil to process and hold current and future terrorist suspects. It would include a facility to indefinitely detain people held without trial or any other constitutionally mandated due process rights.

The reports underscore the profoundly antidemocratic agenda of the Obama administration, which is not only carrying on the Bush administration’s sweeping and quasi-dictatorial assertions of executive authority, but is seeking to institutionalize them.

Administration officials have referred to the proposal as “a courtroom within a detention facility” that would be jointly operated by the departments of Defense, Homeland Security, and Justice. It would combine civilian courts and military commissions, further eroding the principle of a constitutionally independent civilian judiciary. It would mark a further assault on the bedrock democratic right of habeas corpus, i.e., the right to challenge one’s detention in a court of law.

The plan is being considered by a presidential task force, which is at the same time entertaining other possible measures to deal with the current Guantánamo prison population, numbered at 229, as well as future prisoners seized in the “war on terror.” The task force could make public some of its proposals this month.

In the context of the Obama administration’s insistence that the president, as the commander in chief, has the prerogative to order the arrest and incarceration of “terror suspects”—US citizens included—the proposal for the maximum security prison and court complex is especially ominous.

While Obama has dropped formal use of the term “enemy combatant,” his administration has in all essentials carried on the Bush administration policy, as a federal judge pointed out in a recent ruling in the case of Abdul Rahim al Janko. (See: “A change in name only: Obama administration ends use of ‘enemy combatant’ designation”).

Similarly, the administration defends the practice of rendition, in which alleged terrorists are abducted by US intelligence agents and transported for interrogation—and torture—to other countries. And it opposes any investigation or prosecution of Bush administration officials who approved and oversaw the use of torture at Guantánamo, US military prisons in Iraq and Afghanistan, and secret CIA-run black sites around the world.

Within the proposed prison-court complex, detainees could be subjected to federal criminal trials, military commissions or indefinite detention without trial, administration sources say. This third category would apply to prisoners the administration declares to be dangerous, but for whom incriminating evidence is scant or was gathered through torture.

Additionally, prisoners cleared of all terrorism-related charges, but who find no country willing to accept them, could also be jailed at the new facility.

The indifference of the US political establishment and the media to democratic rights is such that a plan for indefinite detention even of those declared by the government to be innocent raises barely a murmur of criticism, with the Washington Post offhandedly noting that “a new stateside facility could include a lower-security unit…for detainees who have been cleared for release.”

Administration sources indicate that the Obama administration may seek some form of congressional approval should it move the plan forward, the transparent aim being to lend a democratic veneer to profoundly antidemocratic policies that would establish the framework for the suppression of political dissent and repression on a massive scale.

The proposal exposes the token and cynical nature of Obama’s executive order to close Guantánamo, issued the week he entered office—to great media fanfare. The action was driven by a desire to remove what had become an international symbol of American lawlessness and brutality, with negative consequences for the aims of US imperialism around the world. Behind the effort to improve Washington’s image, the antidemocratic substance remains.

The prison-court complex proposal is in line with a general assertion by the administration of sweeping and virtually unchecked executive powers. Obama’s Justice Department has made clear its determination to broaden the judicial interpretation of the “state secrets” privilege, on the basis of which the government has moved to shut down, in the name of national security, court challenges lodged by victims of the Bush administration’s policies of rendition, torture and domestic spying.

Last month, Justice Department lawyers filed a friend-of-the-court brief in a Supreme Court case dealing with attorney-client privilege. The last five pages of the brief were dedicated to a defense of the state secrets doctrine—even though it was not germane to the case at hand.

The brief aims to elicit a directive from the Supreme Court on state secrets to the effect that the privilege is rooted in the Constitution—the dubious position Obama has carried on from Bush—and that therefore government appeals of lower court rulings rejecting state secrets claims should be allowed to go directly to higher courts, rather than waiting for the case in question to first be resolved.

The Justice Department brief cites a decision by the US Court of Appeals for the Fourth Circuit upholding the dismissal of a lawsuit mounted by a German citizen, Khaled el-Masri, who charged that he had been abducted and tortured by the CIA. A report by the Council of Europe confirmed Masri’s claims. But the case was dismissed on the basis of the Bush Justice Department’s assertion of state secrets.

Attorney Jon B. Eisenberg called the Obama administration brief a recapitulation of “the good old Bush-Cheney inherent presidential power theory.” Eisenberg represents a charity, Al-Haramain Islamic Foundation of Oregon, that claims it was the object of warrantless electronic surveillance during the Bush administration. Obama administration lawyers invoked the state secrets privilege in a bid to prevent the charity’s attorneys from viewing government evidence against their clients.

The implications of the state secrets claim are clear enough. “By giving the executive branch close to unilateral power to have lawsuits dismissed on national security grounds, the privilege can become a way to conceal government misconduct,” writes New York Times legal correspondent Adam Liptak.

Here again, Obama’s rhetoric about “change” stands exposed. “On the campaign trail and in more recent statements, President Obama has indicated that he wants to limit the use of the state secrets privilege,” Liptak notes. “In courtrooms, however, there has been little evidence of a new approach.”

If anything, Obama has intensified his predecessor’s attack on democratic rights. This is because, in the most fundamental sense, basic democratic principles are incompatible with the central policies of the American ruling class—the expansion of militarism and war abroad, and a further redistribution of wealth from the working class to the financial elite at home.

Obama’s latest moves once again demonstrate the impossibility of defending basic liberties within the framework of the existing political and economic setup, and the need for an independent political movement of the working class to defend democratic rights.

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