Obama Takes a Position to the Right of Congress on Indefinite Detention

Back when I reported on Obama’s stated intent to interpret the good part of the NDAA–the part requiring a meaningful review for all detainees held by DOD–to mean DOD could decide how long to hold people before it gave them the review mandated by Congress, I complained that Obama would hold detainees more than 6 months before granting detainees this review.

In addition, this says DOD gets to decide how long new detainees will have to wait before they get a status review with an actual lawyer–and Congress is perfectly happy making them wait over six months before that time.

Obama seems to have taken that language and pushed it further still: stating that DOD will get broad discretion to decide which reviews will carry the requirement of a judge and a lawyer.

It sort of makes you wonder why the Obama Administration wants these men to be held for over six months with no meaningful review?

It turns out I was far, far too optimistic. As Daphne Eviatar reports, Obama plans to hold detainees for three years before giving them this congressional mandated review.

On April 5, the Defense Department quietly sent a report to Congress indicating how it intends to implement a new law requiring lawyers and judges for detainees held in long-term U.S. military custody. As expected, DoD largely wrote the new rights out of existence, ensuring they’d be accorded to few, if any, detainees. What’s more, it severely limited the scope of judicial review even that small number will receive.

[snip]

Here’s how it works. According to the new regulations:

The combatant commander with responsibility for the theater of operations in which the unprivileged enemy belligerent is detained will ensure that a determination by the DRB or analogous review that the 1024(b) process is applicable is made as soon as practicable but not later than 18 months after the detainee is captured by, or transferred to the custody and control of, the Department of Defense. Additionally, the combatant commander will ensure that a Section 1024(b) review is conducted as soon as practicable after such a determination is made, but not later than 18 months after such a determination is made.

Eighteen months plus 18 months equals three years. So any newly-captured suspect is not entitled to a hearing by a military judge and represented by military defense counsel until three years after his initial detention.

What’s more:

A military judge will conduct a hearing for the purposes of determining whether the detainee is a covered person as defined in subsection (b) of Section 1021 of the Act. The review will be limited to this status determination; it will not include an assessment of the level of threat the detainee poses, nor will it serve as a substitute for the judgment of the combatant commander as to the appropriate disposition of a detainee lawfully detained by the Department of Defense.

In other words, the judge will decide only if the suspect is appropriately classified as an “unprivileged enemy belligerent” — that is, any person “who was part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” The judge will not decide whether that person actually poses a threat to U.S. forces. Yet under international law, that’s a critical part of determining whether someone can be lawfully detained in a war against insurgent groups. That critical determination will continue to be made secretly by a military commander in the field, not by the more neutral judge following an open hearing.

Someone who did laundry, cooked meals or provided medical assistance for a member of al Qaeda, the Taliban or unidentified “associated forces” could therefore continue to be detained indefinitely even after his judicial review if the commander deems him dangerous. And the commander doesn’t have to explain that decision to anyone. [my emphasis]

Those Bedouin women and children we killed in a missile strike and then excused our war crime by saying the Bedouins had been selling AQAP? They’re the kind of people that this order would include.

So in response to Congress–Congress!!!!–trying to put all our military detainees on some kind of legitimate legal footing, Obama (the guy who ran on closing Gitmo), basically blew them off and embraced still more indefinite detention.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

10 replies
  1. Jeff Kaye says:

    Obama — and really any president we might have at this point — is merely a tool in these matters to the military and intelligence powers that actually pull the strings. They have tremendous arrogance and laugh among themselves at the like of Daphne Eviatar, or for that matter you or me.

    The door to indefinite detention was legitimized by the Obama administration at Guantanamo. Once you let such lawlessness in, it makes itself at home, and tends to spread itself out, like a brazen neighbor. Before you know it, you don’t have a home anymore, and the barbarians set up house in your living and bedrooms, and you are booted out the door (or perhaps, keeping with my metaphor) locked in the basement, where one can gnash one’s teeth about the bad manners of the persecutors.

  2. EH says:

    It seems apparent that the goal is to kidnap every Muslim who doesn’t like the US and keep them incommunicado until US hegemony can be reinstalled over the next decades. Disappearing by another name.

  3. orionATL says:

    come on.

    give the guy a break!

    it’s getting closer to voting time and prez is running on having protected the american people from turrists.

    what else positive can he pull from his c.v of the last 3+ yrs.

    plus, that’s where the obama admin has invested a lot of our money (that and banks).

    after putting lots of our money in the global war on terrorism-and-privacy

    and continuing cheney-bush wars for 6 yrs, what did you expect him to do?

    announce he was funding schools, roads, scholarships, and help for drowning homeowners?

  4. P J Evans says:

    @orionATL:
    he’s probably going to talk about schools and roads and scholarships and help for drowning homeowners. I find I don’t particularly want to vote for him – but I don’t seem to see anyone running who’s better.

  5. orionATL says:

    @P J Evans:

    at this point in time, that’s all of our crosses to bear.

    the time to stop this poseur was 2008, not 2012.

    but criticism can be useful,

    and criticism is what this guy gets from me until he becomes a moral and political leader – instead of a poitically cowardly, penny-ante mayor of chicago, pretending he’s president of the united states.

  6. Roman Berry says:

    @P J Evans: You don’t see anyone running who is better? Don’t confine your viewing habits to Republicans, Democrats and hybrids of the two like Obama. There are other candidates and parties. Vote for one that actually stands for what you believe in.

  7. justbetty says:

    I tried that “other party” thing in 1980- result? Ronald Reagan. Change has to start at lower levels before it can affect the top, seems to me.

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