Washington Post (9.24.09)

Administration Won't Seek New Detention System

By Peter Finn

The Obama administration has decided not to seek legislation to establish a new system of preventive detention to hold terrorism suspects and will instead rely on a 2001 congressional resolution authorizing military force against al-Qaeda and the Taliban to continue to detain people indefinitely and without charge, according to administration officials.

Leading congressional Democrats and members of the civil rights community had signaled opposition to any new indefinite-detention regime, fearing that it would expand government powers and undermine the rule of law and U.S. legal traditions.

The administration's decision avoids a potentially rancorous debate that could alienate key allies at a time when President Obama needs congressional and public support to transfer detainees held at the military prison at Guantanamo Bay, Cuba, to the United States for trial or continued incarceration.

The administration has concluded that its detention powers, as currently accepted by the federal courts, are adequate to the task of holding some Guantanamo Bay detainees indefinitely. And although legal advocacy groups, such as the American Civil Liberties Union, are unhappy with the existing system, they acknowledge that it has enabled some detainees to win their release and limited government power in ways that any new law might not.

"This is very welcome news and very big news," said Christopher Anders, senior legislative counsel at the ACLU. "Going to Congress with new detention authority legislation would only have made a bad situation worse. It likely would have triggered a chaotic debate that would have been beyond the ability of the White House to control -- and would have put U.S. detention policy even further outside the rule of law."

In a speech at the National Archives in May, Obama, noting that there may be some detainees held at Guantanamo Bay who cannot be prosecuted for past crimes but who are too dangerous to release, said any system of prolonged detention will involve "judicial and congressional oversight."

"We must have clear, defensible and lawful standards for those who fall into this category," said Obama, speaking of protracted detention. "We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review so that any prolonged detention is carefully evaluated and justified. . . . And so, going forward, my administration will work with Congress to develop an appropriate legal regime."

An administration official, speaking on the condition of anonymity, said Wednesday that Obama's comments did not necessarily imply that he was seeking legislation, despite interpretations to the contrary by some advocacy groups.

A number of academics and legislators had called for the creation, through legislation, of a national security court that could provide legal backing and regular review in cases in which detainees are held without charge. The administration also weighed the possibility of issuing an executive order that would reassert presidential authority to incarcerate terrorism suspects, according to senior government officials with knowledge of White House deliberations, but that route was ultimately rejected.

Senior Justice Department officials first told legal advocates and representatives of human rights organizations at a meeting last week that the administration would not pursue new legislation either.

Mark D. Agrast, deputy assistant attorney general for legislative affairs, and Brad Wiegman, a principal deputy and chief of staff in the National Security Division who heads an interagency task force on detention policy, told a group of about 15 activists that the government has all the detention authority it needs and will neither propose nor support any new legislation, according to several people who attended the meeting. None of those who described the exchange was willing to be identified because the meeting was private.

"The position conveyed by the Justice Department in the meeting you reference broke no new ground and was entirely consistent with information previously provided by the Justice Department to the Senate Armed Services Committee," a spokesman for the department told The Washington Post in a statement. "Specifically, that the administration would rely on authority already provided by Congress under the [Authorization for Use of Military Force] as informed by the laws of war in justifying to federal courts in habeas corpus litigation the continued detention of Guantanamo detainees. The Administration is not currently seeking additional authorization."

Those held by the government can challenge their detention in habeas proceedings in U.S. District Court in the District of Columbia, which has effectively become a national security court through its ongoing review of the evidence against Guantanamo Bay detainees.

About 200 detainees have filed suit under habeas corpus, a centuries-old legal doctrine that allows prisoners to challenge their confinement through the courts.

The government has lost 30 of 38 habeas cases in U.S. District Court, with the judges often citing a lack of evidence to justify continued incarceration. However, 20 of those detainees continue to be held at Guantanamo Bay because the government has not found countries willing to take them, according to statistics compiled by David H. Remes, a habeas lawyer.

Separately, a Justice Department-led review team is also examining the cases of the 226 detainees held at Guantanamo Bay and recommending many for repatriation or resettlement in third countries. The panel will decide which detainees should be prosecuted and whether some should be held in prolonged detention.

Federal judges in habeas cases have also circumscribed the government's rationale for continued detention but have not challenged its fundamental power to detain.

In federal court in March, the Obama administration cited the 2001 congressional authorization of force to assert that "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-Qaeda 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."

That recast the Bush administration's broad claim of inherent executive authority to hold any person who was "part of or supporting" the Taliban or al-Qaeda.