The Indefinite Future of Indefinite Detention

By Jacob Sullum (Archive) · Wednesday, February 25, 2009

On Monday, Attorney General Eric Holder visited the U.S. Naval Base at Guantanamo Bay as part of the preparation for closing the detention center there. Although the prison's days are numbered, the policy it has come to symbolize, indefinite military detention of terrorism suspects, is likely to continue. The form it takes will tell us a lot about the strength of President Obama's avowed commitment to protecting civil liberties.

"I don't think there's any question but that we are at war" with terrorists, Holder said at his confirmation hearing last month. We did not notice when the war began, he said, and we may never know when it ends. The battlefields are not only in Afghanistan, where U.S. forces continue to fight Al Qaeda's Taliban allies, but in countries around the world, including the United States.

Holder was not just speaking figuratively. In response to a question from Sen. Lindsey Graham, R-S.C., he said that if someone suspected of helping to finance Al Qaeda were captured in the Philippines, far from any scene of combat, he would still be considered "part of the battlefield."

The implication -- acknowledged by Holder and by Elena Kagan, Obama's choice for solicitor general, at her confirmation hearing this month -- is that such a person could be held as an "enemy combatant" until the "cessation of hostilities," which in this case effectively means forever. So could, say, leaders of a U.S.-based Muslim charity suspected of funneling money to a terrorist organization or a graduate student at an American university accused of helping Al Qaeda raise funds and attract followers by maintaining a website where incendiary anti-American messages were posted.

Both kinds of suspects have been successfully tried in criminal courts, with one case resulting in convictions and the other ending in acquittal. But under Holder's theory, which was also the Bush administration's, the government need not have bothered; it could simply have transferred these defendants to military custody, where they could be held indefinitely without trial.

That is what happened to Ali al-Marri, a legal U.S. resident from Qatar whose case is now before the Supreme Court. Arrested seven years ago in Peoria, Ill., where he was studying computer science at Bradley University, Al-Marri initially was charged with credit card fraud and lying to the government. In 2003, just before he was scheduled to be tried, President Bush accused him of being "closely associated" with Al Qaeda and ordered him confined at the U.S. Navy brig in Charleston, S.C., where he has been ever since.

The new administration has until March 23 to weigh in on Al-Marri's case. Since President Obama has said Al-Marri is "clearly a dangerous individual," the government probably will try to keep him imprisoned one way or another.

Unlike Bush, Obama will not assert unilateral, unreviewable authority to lock up anyone he thinks is connected to terrorism and throw away the key. The courts have made it clear they will not let the president exercise such power. Even Sen. Graham, who was so pleased by Holder's declaration of war that he offered to vote for him on the spot, concedes that in "a war without end," it is especially important to determine each prisoner's status through a "transparent" procedure that involves "an independent judiciary" and offers "substantial due process."

But that procedure inevitably will be far less rigorous than a trial, and the government will be tempted to use the easier option for anyone suspected of aiding terrorism, including U.S. citizens and legal residents, whether captured on or off the battlefield, in the United States or abroad. It is not at all clear what standards will be used to determine who receives full due process and, if convicted, a fixed sentence, as opposed to "substantial due process" and indefinite detention.

Holder got one thing right at his confirmation hearing. "How we resolve that issue," he said, "will say more about us as a nation than almost anything."

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