Obama’s Right to Detain

Civil rights groups say the United States must charge or release Guantánamo detainees. But Obama has a third choice, explains Ken Gude.

"Preventive detention" has become the buzzword surrounding President Obama’s plan to close the prison at Guantánamo Bay. There has been a lot of loose talk thrown around from all parties using a loaded term like preventive detention in an imprecise way that is confusing a debate when clarity is required.

The authority for the military to detain enemy fighters captured in a zone of active combat to prevent them from returning to the battlefield has long been accepted as a fundamental component of the laws of war. Obama should not be judged on whether he asserts this authority.

Rather, the key issue is whether he returns US policy to settled legal precedent on the scope of military detention, or if he continues President Bush’s extension of it to individuals captured well outside the traditional confines of military jurisdiction. There is no advantage to the Bush system, and the downside risks for Obama and the United States are significant.

Obama forcefully returned to the debate about closing Guantánamo last week in a speech in which he grouped the remaining detainees into five categories: two dealing with prosecution, two dealing with transfer and the fifth consisting of detainees that he described as those "who cannot be prosecuted yet who pose a clear danger to the American people". Issues related to prosecution and transfer, although complex, have already been decided. The key remaining issue is what to do with the detainees in the president’s fifth category.

The way Obama framed this issue – detention of individuals who cannot be criminally charged – has contributed to the confusion. That clearly implies a system of detention without charge which falls within the common understanding of preventive detention. That is certainly how human rights and civil liberties groups reacted.

The American Civil Liberties Union’s Jameel Jaffer told the New York Times that "if [Guantánamo detainees] cannot be convicted, then you release them." Many human rights advocates frame this binary choice, often referred to as "charge or release", as the only options available to the US government to dispose of the Guantánamo detainees. Anything else in their view constitutes unlawful preventive detention.

Charge or release, however, overlooks long-standing common sense military authority to detain enemy fighters.

Since October 2001, the US military and its coalition partners have been engaged in combat operations in Afghanistan, and more recently the border areas of Pakistan. Our enemies in this conflict are the Taliban, at the time of the invasion the de facto government of Afghanistan and the al-Qaida terrorist organisation that had orchestrated the September 11 attacks and fought alongside the Taliban against coalition forces in the field. Both the US Congress and the UN security council authorised and endorsed this military action.

During this ongoing military conflict, the US clearly possess the authority to detain enemy fighters captured on the battlefield or fleeing from it. In 2004, the US supreme court agreed and held in Hamdi v Rumsfeld, that "because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force,’ Congress has clearly and unmistakably authorised detention in the narrow circumstances considered here." (Emphasis added.)

Those narrow circumstances were Taliban or al-Qaida fighters captured in Afghanistan. The Bush administration, however, did not confine its assertion of military detention authority to these circumstances. It claimed the power to hold in indefinite military detention individuals suspected of mere association with terrorism who had never taken part in any military engagement.

The incredibly broad Bush military detention scheme netted a few high-value terrorists like Hambali, the Bali bombing mastermind captured in Thailand, but many more extremely low level militants or innocents like Lakhdar Boumediene, first arrested in Bosnia. But there is no meaningful security advantage to this broad system of military detention when compared with the narrower version already approved by the supreme court, while there are a number of serious drawbacks.

The types of detainees currently in military detention captured outside the combat zone that the US has a genuine interest in keeping locked up – the Hambalis – are exactly the kinds of detainees who are easiest to prosecute in courts. Indonesian, Australian and American prosecutors would likely relish the chance to convict such a notorious terrorist. Nothing would prevent lawful interrogation for intelligence purposes, and the long record of terrorism prosecutions demonstrates that many defendants agree to cooperate with the government as part of plea bargains.

The experience of Bush-style military detention clearly shows that most of the detainees caught up in it are not particularly dangerous. Their detention often resulted from foreign intelligence services offloading their problems onto the US, and now we are stuck with them. Perpetuating such a one-sided relationship would undermine efforts to build the capacity of partner countries to combat terrorism themselves, an important objective if we are to succeed in the world wide struggle against terrorism.

Beyond security and strategic concerns, such a system brings unwanted hurdles and headaches that would distract government officials. The problems associated with transferring or resettling these detainees are well known and would only grow if this system is continued or expanded. A long set of legal challenges would certainly ensue with a very uncertain outcome, and no amount of due process improvements or greater congressional or judicial oversight can save a system built on a flawed foundation.

President Obama inherited a complete mess at Guantánamo, and he has embarked on a serious process to explore all available options to get out of it. Charge or release is the right way to begin to work through the remaining Guantánamo detainees. It is not, however, a complete picture of the lawful authority available to the president and may not be adequate to resolve all the cases.

Traditional military detention is inherently preventive, but it is not what is commonly referred to as preventive detention. Narrow military detention on terms already approved by the supreme court is sufficient to safeguard both national security and American values. Choosing to keep the Bush administration’s broad system would do neither.

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Ken Gude

Senior Fellow