Wall Street Journal:The Obama administration's efforts to craft what it calls a "preventive detention" plan for suspected terrorists will face constitutional challenges similar to those raised against the Bush administration's policies.
Some detainees held at Guantanamo Bay, Cuba, are deemed too dangerous to release and may not be able to put on trial, creating a quandary that President Barack Obama said Thursday poses "the toughest issue we will face."
There are still many unknowns in the administration's plans. How many prisoners will fall into the thorniest category requiring indefinite detention is still unclear while detainee cases are being reviewed by government lawyers. A White House task force reviewing detention policy is set to make recommendations in late July.
The administration has floated with Congress a possible plan that would seek legislation allowing the government to hold suspected terrorists without trial indefinitely on U.S. soil. A National Security Court would oversee the cases. Administration lawyers view the congressional and court oversight of the plans as key to their argument that their approach differs significantly from the Bush administration, which tried to claim broad presidential powers to strip terror suspects of legal rights.
There's a tradition of indefinite detentions by the military in war time. However, the government's argument that the campaign against al Qaeda and other terrorist groups may be a war without end creates complications.
The government's past attempts at such detentions have a checkered legal history.
The Bush administration tested the government's indefinite detention powers in the case of Yaser Hamdi, a U.S. citizen captured in Afghanistan and detained as an "illegal enemy combatant." In a 2004 ruling, the Supreme Court agreed in part with the government. But its ruling that Mr. Hamdi had the right to challenge his detention led the Bush administration to create Pentagon-run tribunals to review cases of detainees.
Administration officials acknowledge that the Hamdi case doesn't directly answer the legal questions posed by the White House's emerging indefinite detention policy. In a subsequent 2008 case, the Supreme Court backed the legal rights of foreigners held at Guantanamo, ruling in the case of Lakhdar Boumediene that he had a right to access the U.S. courts.
Civil liberties and human rights groups who criticized the Bush administration's detention policies are definitive in their opposition to Mr. Obama's plans.
"It's really crossing a constitutional Rubicon," said Jonathan Hafetz, American Civil Liberties Union attorney who represented Ali al Marri. Mr. al Marri recently pleaded guilty to being an al Qaeda sleeper agent after years being held without charge as an "enemy combatant."
Mr. Hafetz says that President Obama is "taking steps that are inconsistent with our legal traditions and values. At the same, he's closing Guantanamo but he's creating a new Guantanamo in another form."
In recent weeks, the Obama administration has won court backing for important elements of the policy. District court rulings have agreed with the administration that the congressional authorization for military force following the Sept 11, 2001 attacks, as well as the laws of war, give the government the right to detain indefinitely members of al Qaeda and affiliated groups at war with the U.S. Those cases will likely continue to be in litigation for months to come.
The government has tried indefinite detentions for cases unrelated to terrorism, particularly immigration and mental illness. A 2001 Supreme Court decision ruled it was illegal for the U.S. to indefinitely detain hundreds of Cuban refugees who arrived in the Mariel boatlift and who were deemed dangerous to release but whom the Cuban government refused to take back.
But the courts, including the high court in one case, have allowed state laws that require the indefinite detention of criminal sex offenders deemed to have mental issues that make them a danger to society even after they have served a prison sentence.
The administration is studying detention proposals, including one from South Carolina Republican Sen. Lindsey Graham, who suggests a hybrid approach: applying military law to declare detainees a danger to the U.S., followed by reviews of the National Security Court to verify detainees' status.
On Wednesday, the president discussed outlines of such a plan with representatives of civil liberties and human rights groups at a meeting in the White House. These groups, including the ACLU, led the legal assault that won important court-ordered curbs on the legal underpinnings of the Bush administration's national security policy. They promise to the same to Mr. Obama's.
Barack Obama
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