Obama on indefinite detention: a Goldsmith blueprint?

The Obama Administration's National Security Strategy includes a statement of intent to develop a system of "prolonged detention" of "suspected violent extremists" who "cannot be prosecuted":

For detainees who cannot be prosecuted--but pose a danger to the American people--we must have clear, defensible, and lawful standards. We must have fair procedures and a through process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government (p. 36).

Three observations about this policy: 1) The report of Obama's Guantanamo Review Task Force, completed in January but just leaked to the Washington Post and published yesterday, elaborates in some detail why the Administration believes that 48 of the detainees at Guantanamo (and presumably many more at Bagram) cannot be prosecuted and cannot be released.  2)  Obama's basic intent on this front has been in place for more than a year -- he sketched out essentially the same policy in May 2009.   3) The system of "prolonged detention" he has in mind, only briefly elaborated in May 2009 and May 2010, seems to adhere to a more detailed proposed program laid out in February 2009 by Jack Goldsmith, the former head of the Bush Administration's Office of Legal Counsel who withdrew the torture memos and resigned after just nine months.


The Guantanamo Task Force produced a recommendation for every one of the 240 detainees remaining at Guantanamo, with each decision reached by unanimous agreement of the agencies responsible for review: Justice, Defense, State, Homeland Security, Director of National Intelligence, and Joint Chiefs of Staff. The Task Force approved 126 detainees for transfer to other countries, referred 44 for prosecution, held 30 Yemenites pending a determination that security conditions in Yemen are met or other countries accept them -- and deemed 48 "too dangerous to transfer but not feasible for prosecution."

The rationale for this designation in some measure contradicts both Goldsmith, who highlights the importance of protecting sensitive evidence from disclosure, and a Human Rights Watch report examining over 100 terrorism prosecutions, written by former prosecutors Richard Zabel and James Benjamin (summarized here), which suggested that laws criminalizing "material support" for terrorist organizations should offer adequate grounds to prosecute any Guantanamo detainees deemed too dangerous to release.  According to the Task Force:

First, the vast majority of the detainees were captured in active zones of combat in Afghanistan or the Pakistani border regions. The focus at the time of their capture was the gathering of intelligence and their removal from the fight. They were not the subjects of formal criminal investigations, and evidence was neither gathered nor preserved with an eye toward prosecuting them. While the intelligence about them may be accurate and reliable, the intelligence, for various reasons, may not be admissible evidence or sufficient to satisfy a criminal burden of roof in either a military commission or federal court. Our common problem is that, for many of the detainees, there are no witnesses who are available to testify in any proceeding against them.

Second, many of the detainees cannot be prosecuted because of jurisdictional limitations. In many cases, even though the Task Force found evidence that a detainee was lawfully detainable as part of al-Qaida--e.g., based on information that he attended a training camp, or played some role in the hierarchy of the organization--the Task Force did not find evidence that the detainee participated in a specific terrorist plot. The lack of such evidence can pose obstacles to pursuing a prosecution in either federal court or a military commission. While the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization,e.g., by attending a terrorist training camp, there are potential limitations to pursuing such a charge against the detainees [footnote explains that two relevant statutes did not apply outside of the U.S. to non-U.S. persons until Oct. 2001 and Dec. 2004, and that statutes of limitations have run out for some allegations].

Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted.  While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above (pp. 22-23).

It should be noted that this report is narrowly focused on Guantanamo detainees, and that much of the rationale for holding some detainees without prosecution would not apply to prisoners taken on Obama's watch -- e.g., the statute of limitations, and to some degree, lack of concern at the time of capture with gathering evidence.  Add in the report's effective dismissal of keeping sensitive evidence secret as a serious bar to prosecution, and much --though not all--of Goldsmith's rationale for a long-term system of preventive detention disappears. Here's Goldsmith in the report cited above:

For one thing, military detention will be necessary in Iraq and Afghanistan for the foreseeable future. For another, we likely cannot secure convictions for all of the dangerous terrorists at Guantanamo, much less all future dangerous terrorists, who legitimately qualify for non-criminal military detention. The evidentiary and procedural standards of trials, civilian and military alike, are much higher than the analogous standards for detention. With some terrorists too menacing to set free, the standards will prove difficult to satisfy. Key evidence in a given case may come from overseas and verifying it, understanding its provenance, or establishing its chain of custody in the manners required by criminal trials may be difficult. This problem is exacerbated when evidence was gathered on a battlefield or during an armed skirmish. The problem only grows when the evidence is old. And perhaps most importantly, the use of such evidence in a criminal process may compromise intelligence sources and methods, requiring the disclosure of the identities of confidential sources or the nature of intelligence-gathering techniques, such as sophisticated electronic interception capability (p. 4).

What remains unclear is the extent to which the evidentiary problems outlined in the Task Force report -- and by Goldsmith -- were a product of the circumstances and mindset of late 2001, when the Taliban was toppled -- and of the horrific record-keeping of the Bush Administration.  Even under those circumstances, the percentage of those slated for detention without prosecution is relatively small -- 48 out of about 750.  Do Taliban fighters and supporters held at Bagram pose equal dilemmas?  Perhaps the status of most of them is closer to that of conventional prisoners of war: U.S. hostilities against the Taliban, in contrast to those against al Qaeda, will -- must -- have an end. As for captured al Qaeda members or collaborators, presumably they would be easier to prosecute than Afghans fighting for or collaborating with the Taliban, since the latter have a broad range of locally-focused motives and incentives.  Nonetheless, the Administration seeks "an approach that can be sustained by future Administration" and thus apparently anticipates a steady stream of candidates for prolonged detention.

Where the Administration seems most clearly to be following a Goldsmith-like blueprint is in its brief allusions to the kind of system it envisions to subject indefinite detention to due process (if that is not an oxymoron). Here's what Obama said on May 20, 2009:

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture - like other prisoners of war - must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. 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.

I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

More briefly, the Task Force report adds, "We must have fair procedures and a through process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances."

Re those "checks and balances," Goldsmith recommended that Congress create a national security court, or define the writ and procedures of what he argued has already emerged de facto as a national security court, the U.S. District Court in D.C.  For such a court's oversight of government bids to hold prisoners indefinitely without trial, Congress would have lay out new rules regarding definition of the "enemy" subject to such a court's jurisdiction. That is, Congress would have to define, who can be deemed to have "directly participated" in hostilities; set laws of evidence (he recommends permitting hearsay in accordance with standard of international criminal courts), rules governing disclosure and publicity (classified evidence should be submitted ex parte , as it is in some cases in civilian terrorism trials); and a procedure regularized review of detention decisions. Such review is one control that the Administration has spelled out -- its most specific overlap with Goldsmith's program.  Goldsmith proposes:

Congress should not lightly countenance indefinite detention, especially under some of the looser standards articulated above. The appropriate compromise is for a detention order to be limited to some period of time say six months, and then be subject to renewal using the same processes as governed the initial order. In each instance, the government will have to convince the national security court that the individual remains a threat and satisfies other detention criteria. The fact that the government will have to repeatedly come back to court to justify its detention will also be a natural constraint on the expansion of preventive detention. Many prosecutors will dislike the continued need to justify detention and will favor prosecution where possible instead.

At some point, moreover, the periods of semi-annual detention will begin to look more criminal in their nature than civil. As detention continues for years, it may be appropriate to require an escalating burden of proof on the government--perhaps from a "preponderance of the evidence" standard to something more akin to "clear and convincing evidence" or "beyond a reasonable doubt" (p.13).

The legal basis for indefinite detention is based on the detention of prisoners of war. The difficulty, of course, is apply or adapting that practice  in a war without end, or for a detainee whose intent to do deadly harm may never end. Whether, knowing what we now do, the U.S. continues and will continue to capture such potential eternal enemies without being able to procure the means to prosecuting them remains to my mind an open question.

See also: Is trusting Obama like trusting Bush?