On the day after his inauguration, President Obama instructed his attorney general and chief legal advisers to create a new framework for detention that would be binding upon his predecessors and consistent with American law. For six months, the task force's small professional staff and its members have met in secure Justice Department conference rooms.
The participants are diverse: there are tough-as-nails intelligence types. FBI interrogators who've been on the front lines. Academics. Civil libertarians. State Department officials who are sensitive to international opinion. Defense department attorneys who live and breath the Uniformed Code of Military Justice.
To illustrate the central dilemma this team must consider, some task force staff members have created a semi-fictional scenario involving a most-wanted terrorist bad guy who is located in a foreign country.
Somewhat tetchily, a few of them have chosen Thailand, a country known to have permitted the CIA to operate a black prison site.
The scenario proceeds roughly as follows: in cooperation with Thai intelligence, the United States discovers that a known al Qaeda operative is noodling around in Chang Mai.
Thailand, of course, is not contiguous to any battlefield. Preventing this person from committing an act of terrorism is a paramount national security concern.
But the laws are very ambiguous and so are the ethics. It is not at all clear that the person can be arrested by Thai authorities, extradited to the U.S. and then tried in a federal court. Perhaps the intelligence was obtained through extraordinary methods; perhaps a foreign government obtained the location (later validated) through torture; perhaps the U.S. has a very well-placed human source inside the Thai-terrorism nexus. What to do? The Bush administration had a simple answer: send in the commandos -- i.e., the Joint Special Operations Command -- kidnap them, or kill them, or have them transferred to military custody and parked in a cell for the rest of their lives. The Bush administration used JSOC teams to kidnap or kill suspected terrorists in Yemen and Somalia.
In the task force's hypothetical example, the person has not yet committed a terrorist act against the United States but does belong to a terrorist organization. In theory, the person could be captured and held by the United States under the authority Congress granted to the President in its 2001 authorization for the use of military force.
However, the law is also fairly plain about geography: the terrorist in Thailand who has yet to commit an act of terror (one can be a terrorist without acting on the impulse) is not covered by the AUMF and may not be covered by U.S. criminal law either. So what's a president to do? Sending in the special ops commandos is quick and efficient, but it draws on an as-yet untested claim that the president has the inherent authority to kidnap and/or kill anyone his executive branch deems to be a threat. Obama, in a recent AP interview, doesn't like this option. It is the apogee of the unitary executive theory.
And yet, the president has a constitutional duty to do something, and he has a moral imperative to prevent an attack on the United States.
On first glance, the laws of war and criminal law seem inadequate. That's why several scholars have proposed to codify the president's authority to capture and detain threats to the country but do so in a way that involves the political institutions and does not circumvent them. Proposals being floated include special national security courts, or periodic status reviews. Congress would facilitate the creation of these mechanisms by passing a law. The argument in favor of this approach proceeds from the assumption that the president does have the authority to do this, but that he lacks legitimacy unless he involves the other branches of government and cedes some of his power.
There's a big legal problem with this approach. As lawyers for detainees are finding out, the judiciary branch has been extraordinarily deferential to the executive branch when it considers matters of national security, especially the question as to whether something or someone constitutes a national security threat. Almost without hesitation, courts, up to and including the Supreme Court, have given the executive branch an enormous degree of latitude. Legislation that would question this presidential power -- the power to define national security threats -- would face an immediate court challenge; it is hard to see the White House signing off on a proposal that would throw out 50 years of precedent and take away authority that presidents before George W. Bush have claimed.
In May, some members of the task force asked two outside experts, Kate Martin and Ken Gude of the Center for National Security Studies and the Center for American Progress to submit a memorandum on the Thailand question and the scope of the president's authority.
For Gude and Martin, the question of whether the president has the authority to indefinitely detain untriable Guantanamo Bay-held combatants is moot at this point. Hesitatingly, they concede that the decisions made by the Bush administration have tied Obama's hands very snugly.
"We respectfully urge that consideration of such cases should not be the basis for adopting far-reaching policies with substantial counterterrorism costs that are likely to far outweigh any short-term benefits from continuing to detain such individuals," they argue in the brief, which was obtained by the Atlantic.
But they part company on the critical question of whether the president needs any additional authority. They do not believe there is anything terribly magical about terrorism so as to jerry-rig any new court review or supra-congressional authority onto the existing cannons of law and practice. Any preventative detention system, they argue, is not only "illegitimate" from a legal perspective, it will be seen as such by the world, thereby exacerbating the climate that allows terrorists to recruit against America.
So what can the president do in the case of the Thai would-be terrorist? Three options. He can ask the Thai government to detain and try the man. America's image as the world's antiterror cop easily morphed into something much worse: the image of America being at war with Muslims. Having other countries participate in the trials and detentions of terrorist suspects would internationalize the concept of antiterrorism, and it would prevent these countries from using America's eagerness to fight terror as a way to kick out some of their undesirable political dissidents.
Or, the President could instruct the FBI to build a case -- a parallel case -- against the suspect. This would take more time and lots of resources, but it would certainly legitimize the capture and detention of a dangerous person. The FBI is, in fact, working to build many cases like this right now because of a similar imperative to try as many Gitmo detainees in federal courts as possible.
Or, the President could try something novel: the CIA, or the FBI, could inform the terrorist that he or she is being monitored. Britain has employed this tactic on occasion, and is has stopped many plots. It's dangerous, of course, and may only lead to the terrorist in question becoming more secretive and paranoid. But it's an option.
The task force will present its conclusions to the White House in a few weeks. Most likely, it will outline a variety of options consistent with the president's charge. Where is Obama leaning? The answer depends on whether he believes that modern terrorism is a sui generis threat; whether the granting or codifying of a new executive detention authority will be abused in the wrong hands; whether the current law is sufficient to deal with the problem. It also matters, quite frankly, who gives him advice.
My sense is that the President hasn't decided yet. That presents an opportunity for everyone -- lawyers, activists, ordinary citizens -- to influence one of the most important decisions Obama will make.
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