Tag Archives: detainees

Closing Guantanamo Bay

Originally published on February 9, 2009, at politicsunlocked.com

Photo: Puerto Rico National Guard troops pack it in after a year's deployment at Guantanamo; The National Guard; licensed under creative commons

Photo: Puerto Rico National Guard troops pack it in after a year's deployment at Guantanamo; creative commons http://www.flickr.com/photos/thenationalguard/3229073306/in/photostream/

President Barack Obama has signaled that the U.S. military will close Guantanamo Bay detention camp within one year.  The prison has become a divisive symbol of the controversial handling of enemy combatants by the Bush administration’s War on Terror. 

President Obama has shifted responsibility for the remaining 245 Gitmo prisoners from the Defense Department to the Justice Department.  Newly appointed Attorney General for the United States, Eric Holder, Jr., will take responsibility for determining whether those prisoners will be given civil or military trials, transferred to foreign countries or released.

The outlines of the President’s new policy on detention will be filled in in coming months, but certain things are clear.

The President has forbidden the use of torture against detainees in American custody.  “The United States will not torture,” the President stated.  

This policy includes prisoners under CIA control, and while extraordinary renditions will be allowed to continue during the Obama administration review of policy, the CIA will not be allowed to transfer prisoners to any country where they will be subject to torture.  

Outgoing CIA chief Michael Hayden sent a message to staff at the agency stating that the new policy would be carried out, “without exception, carve-out or loophole.”

Holder’s justice department has begun review of enemy combatant court cases beyond Guantanamo Bay, such as that of Ali Al-Marri, held at a military brig in North Carolina.  Al-Marri has appealed to the United States Supreme Court for review of the Defense Department’s decision to imprison him without trial.  Al-Marri was living in the United States as a legal resident at the time of his arrest, giving him a stronger position to seek a trial than, say, an enemy combatant captured by coalition forces in Afghanistan.

However, the Obama administration sought a postponement of hearing by the Supreme Court.  Al-Marri “is clearly a dangerous individual,” Obama has said. “We have asked for a delay in going before the Supreme Court to properly review the evidence against him.”  

The Bush administration had also decided to close the Guantanamo Bay facility, but ran into difficulty finding new places to house the remaining detainees.  Bush policy was to hold enemy combatants without trial or transfer them to foreign countries for incarceration.

However, the U. S. Supreme Court has ruled that all Guantanamo detainees are entitled to habeas corpus, or, the right to petition a federal court for review of the decision to imprison them.

Recently, a federal court in Washington D.C. ordered five Algerian detainees to be released for lack of sufficient evidence against them.  Other detainees have been caught in legal limbo because the United States would like to release them to their native China, but are constrained by the probability that they will be subject to ill treatment or execution if returned, because of their opposition to the Chinese regime.

The Obama administration will also deal with the question of detainees held in U.S. military custody abroad, such as those held at the Bagram base in Afghanistan.

These prisoners were captured in military operations and are thus more like traditional enemy combatants, but some have been held for as long as eight years and there is still no end in sight for conflict in Afghanistan.

From a policy perspective, Obama’s intent to increase U.S. troops and coalition commitments in Afghanistan soon, will likely result in more enemy combatant prisoners, going forward.

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Detainee Ali Al-Marri Appeals

Originally published at politicsunlocked.com

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photo: creative commons

Supreme Court agrees to hear enemy combatant case.

The United States Supreme Court has agreed to hear the legal appeal of a man imprisoned without trial as an enemy combatant.

The case presents a rare situation where a person suspected of working for the enemy, in this case Al Qaeda, was arrested inside the United States and is being treated like a battlefield capture.  The man, Ali Al-Marri has not been charged with an act of terrorism or any other crime in U.S. courts, although the government has presented a statement of evidence against him.  According to the government’s declaration, Al-Marri met withOsama Bin-Ladin and was instructed to enter the United States to conduct an act of sabotage against financial institutions.

Since operation Enduring Freedom (the U.S. military action in Afghanistan) began in 2001, thousands of Al Qaeda members captured overseas have been imprisoned as enemy combatants.  This is a common practice in armed conflicts and is recognized by international law.  Al Qaeda members have also been arrested in the United States for crimes committed here, such as the 1993 World Trade Center bombing.  In those cases, defendants were charged with crimes and afforded trials according to the rules of our criminal justice system.

The present case is, however, a hybrid.  

Ali Al-Marri was living with his wife and children in Peoria, Illinois and attending computer classes at Bradley University, when he was arrested in 2001.  He was originally treated like a criminal suspect and was incarcerated while awaiting trial.  However, before his trial occurred, he was reclassified by the Bush administration as an enemy combatant and moved from the civilian court system to a South Carolina military prison.  As an enemy combatant, he was not given a trial and was told he may have to wait until the end of the war to be released.

There are two central legal principles in this case.  

First, the executive branch is constitutionally invested with the power to conduct war and secure the national defense. Within this power are decisions about how to handle the capture of enemies.  The judiciary, not the branch of government suited to speed or action, gives the president almost complete authority on such matters of national defense.  In a previous case on detentions, the Supreme Court allowed an American citizen, whose battlefield capture in Afghanistan demonstrated his Al Qaeda affiliation, to be imprisoned as an enemy combatant, stating “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war.”

Secondly, because the arrest of Al-Marri was made in the United States, there is serious judicial concern about his detention without trial in light of our national principles of constitutional justice.  The right to confront witnesses against you and be tried by a jury has long been fundamental to our system of justice.  These rights, guaranteed in the Sixth Amendment to our Constitution, were viewed as fundamental by our nation’s founders, who feared the power of Kings and abusive governments to condemn and imprison their political enemies unjustly.

Attorneys for Al-Marri have challenged his detention without trial through a writ of habeas corpus.  This allows Al-Marri to challenge the government’s legal authority to treat him as an enemy combatant. The Court of Appeals for the Fourth Circuit ruled in a 5-4 split decision that the government does have this authority, under the Authorization for Use of Military Force against Terrorists passed by Congress in 2001.  Al-Marri’s Supreme Court petition asks the high Court to overturn the Fourth Circuit decision and reject the government’s enemy combatant classification of him, making him eligible for trial.

While the evidence against Al-Marri and the fairness of process have also been challenged, these questions are still in stages of review by the lower courts.  Thus, the Supreme Court has only, at this point, focused on whether the government has legal authority to detain Al-Marri without trial, rather than any consideration of what evidence should be required in order to do so.


While the case is not likely to apply to many individuals, it certainly has very important implications.  Historically, America is well aware of the internment of Japanese Americans without trial in World War II. A 1980’s court challenge to the government’s WWII internment practice called into question whether the government had been honest in its claims about the risk that Japanese Americans posed, including in representations to the U.S. Supreme Court during the war.

On the other hand, the experience of the government in the 1990’s, prosecuting Al Qaeda operatives responsible for the 1993 World Trade Center bombing, illustrated the great economic cost and commitment of resources required to process just a few individuals through the criminal justice system.  

 

Originally published at: http://www.politicsunlocked.com/item/detainee-ali-al-marri-appeals