By William Fisher The Public Record 3/16/09

Human rights activists and Constitutional law experts were virtually unanimous in their condemnation of the positions taken on prisoner detention and treatment in Federal Court last week by President Barack Obama’s Department of Justice, which one group described as “a case of old wine in new bottles.”

While the DOJ announced it would no longer use the term “enemy combatants” — one of the Bush Administration’s signature phrases — and distanced itself from Bush-era claims of unlimited Presidential power, government lawyers urged the court to dismiss a lawsuit brought by four former Guantanamo detainees because “aliens held at Guantanamo do not have due process rights.”

The former detainees, who are British citizens or residents, are suing former Defense Secretary Donald Rumsfeld and several senior military officials for authorizing and carrying out torture and depriving them of their religious rights while the Britons were in captivity. The case is known as Rasul v. Rumsfeld.

The government’s court brief called for a blanket ban on such lawsuits.  

Allowing them “for actions taken with respect to aliens during wartime,” it told the District of Columbia Circuit Court, “would enmesh the courts in military, national security, and foreign affairs matters that are the exclusive province of the political branches.”
Human rights advocates were quick to respond.

The Center for Constitutional Rights, which has provided lawyers to defend many Guantanamo prisoners, said the Obama Administration has “adopted almost the same standard the Bush administration used to detain people without charge.”

It called the government’s position “a case of old wine in new bottles,” adding, “It is still unlawful to hold people indefinitely without charge. The men who have been held for more than seven years by our government must be charged or released.”  
Anthony Romero, head of the American Civil Liberties Union, said he found it “deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn’t engage in hostilities against the United States.”

“Once again,” he said, “the Obama administration has taken a half-step in the right direction. The Justice Department’s filing leaves the door open to modifying the government’s position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years.”

Brian J. Foley, Visiting Associate Professor of Law at Boston University law school, told us, “The Obama Administration should stop this prison program, which is actually harmful to U.S. intelligence-gathering.”

“Imprisoning people on flimsy evidence means we are interrogating, sometimes harshly and sometimes with torture, people who are not terrorists. These people will tell interrogators anything to stop the pain. That means they give us false leads and send our investigators scurrying around like chickens with their heads cut off, chasing imaginary monsters.  This waste of time keeps our investigators from developing real leads. It’s a policy based on fear — “What if there is actually a real terrorist among the hundreds of innocents – we better not let anyone go!” — that is counterproductive and shameful,” he said.   

Elisa Massimino, CEO and Executive Director of Human Rights First, said, “The Justice Department was right to recognize that it should not be holding prisoners as ‘enemy combatants.’ But the new definition of persons who may be held without charge does not differ in any fundamental respects from the old one, and it significantly distorts important traditional Law of War distinctions between international and non-international armed conflict.”

“The concept of indefinite detention without criminal charge continues, and the class of persons to be detained remains ill-defined and overly broad. The Administration left open the door to reconsider the definition during ongoing interagency reviews and we certainly hope it will use that opportunity to narrow the authority and make a clean break from the policies of the past.”

Jonathan Turley, an internationally recognized Constitutional scholar and a professor at George Washington University law school, said, “The (Obama) Administration is still arguing that it can hold these individuals without federal charges and it is still trying to quash lawsuits filed by their counsel.”

“The biggest danger,” he said, “is that it is an effort to make Obama look principled on international law before he blocks any criminal investigation of war crimes by his predecessor.”

Human Rights Watch took a similar view. Joanne Mariner, HRW’s terrorism and counterterrorism program director said, “The Obama administration’s take on detainees is essentially the Bush standard with a new name. The Obama administration’s newly issued position on Guantanamo detainees is a disappointment. Rather than rejecting the Bush administration’s ill-conceived notion of a ‘war on terror, ’ the Obama administration’s position on detainees has merely tinkered with its form.”
“We urge the Obama administration to reconsider its views,” Mariner said. “The administration should be prosecuting terror suspects in the federal courts, not looking for ways to circumvent the criminal justice system.”

And Jonathan Hafetz of the American Civil Liberties Union (ACLU), who is currently defending several former Guantanamno detainees in a lawsuit against a subsidiary of the Boeing Company for its alleged involvement in their “extraordinary rendition,” told us:
“The new administration is interpreting the Authorization for Use of Military Force (AUMF) largely as the Bush administration did: As giving the president broad powers to detain indefinitely individuals without charges or trial based on suspected terrorist activities.”

The Obama legal team “remains locked into the same misguided and illegal approach to fighting terrorism. The dropping of the ‘enemy combatant’ labels appears at this point more symbol than substance,” he said.

The AUMF resolution was passed by Congress on September 18, 2001, immediately following the terrorist attacks of September 11, 2001. It authorized President George W. Bush to use the U.S. Armed Forces to pursue those responsible.

But not all Constitutional experts agreed with the statements of human rights groups. For example, Prof. Peter Shane of the University of Ohio law school took a somewhat more nuanced view. He told us, “If the Obama Administration is abandoning the position that the President has exclusive and virtually unlimited authority to guide foreign and military affairs unilaterally, that may signal a willingness to collaborate with Congress in the development of future initiatives, which, in turn, could well have a moderating impact on American adventurism abroad.”

The Rasul case has had a difficult history in U.S. courts. The U.S. Circuit Court, in a ruling in January of last year, decided that Guantanamo detainees have no constitutional rights because they are “aliens without property or presence in the U.S.” It dismissed the case.

But in December of this year, the U.S. Supreme Court agreed to review the case. The high court sent the case back to the U.S. Court of Appeals for the D.C. Circuit for further consideration.
The “further consideration” was triggered by a landmark Supreme Court decision nine months ago in a case known as “Boumediene,” which established that Guantanamo detainees do have a constitutional right to challenge their detention in federal court. It returned the Rasul case for a second look by the Circuit Court.

While President Obama has ordered the prison at Guantanamo Bay to be closed by next January, government lawyers have taken positions in several   current detainee court cases that do not propose fundamental change from that taken by the Bush Administration. It has also invoked the Bush positions on so-called “state secrets” privilege to prevent cases from ever being heard in courts, on the grounds that public disclosure would jeopardize national security.

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