President Obama has decided not to seek a preventive detention statute from Congress, despite having suggested he would during his national security speech at the National Archives earlier this year, reports the New York Times. Instead, the administration will continue to detain terror suspects under the authority given by the Authorization to Use Military Force. It's not clear whether the authority would apply merely to the "hard cases" left over by the Bush administration--people who were either tortured or were detained on the basis of intelligence that might not hold up as evidence in court--or whether they'll try to detain more suspects indefinitely in the future.
This development marks a pretty significant victory--if not the end of the war--for civil liberties advocates, who had been fighting furiously against any attempt to pass a new preventive detention law. Under the current system, lawyers for Guantanamo Bay detainees have won 30 out of 38 habeas cases, meaning that the administration's preventive detention authority is far from absolute, and less airtight than it might of been with a whole new statute.
That said, former military commissions defense lawyer Major Eric Montalvo (Ret.) called the move "a political decision, not a legal one," and warned that the habeas process was inadequate for providing due process to detainees. "The burden of proof in habeas proceedings is low," Montalvo says, adding that "most of the "bad guys" are not represented by military counsel so their cases have not been referred, and therefore no military/civilian defense counsel has access to the case to develop the information necessary to effectively debunk the government's position." Montalvo represented former Guantanamo Bay detainee Mohammed Jawad in his military commissions trial.
Other civil liberties advocates were similarly unsatisfied. “It may be one of the better results we could hope for, but in reality indefinite detention continues,” said Michael W. Macleod-Ball, Chief Legislative and Policy Council for the ACLU's Washington Legislative Office. "That’s antithetical to the American justice system.”
ACLU Lawyer Jonathan Hafetz, who also represented former Guantanamo Bay detainee Mohammed Jawad, in his Habeas case, was even more critical. "This hardly constitutes meaningful change," Hafetz said. "In fact, Obama is continuing to make the same core assertion Bush did: the right to seize individuals anywhere in the world and deny them a fair trial based on the notion of a global "war on terror....[T]he best way to fight terrorists is to treat them as criminals, not combatants."
Ken Gude, a human rights expert at the Center for American Progress, was present at a White House meeting with civil liberties advocates regarding changes to the military commissons where the decision not to pursue a preventive detention statute was relayed. “I’m pleased that it doesn’t look like they’re going to go to Congress for any new detention authority," Gude says. "But I think we have to remember that that would have been the worst case scenario, because what would have resulted, regardless of the administration’s intentions, would have been a broad preventive detention scheme that would have been disastrous."
The question now Gude adds, is whether or not the administration will stick with its rather broad assertion of detention authority outlined in its March 13 filing or whether it will go further than that.
-- A. Serwer