Saturday, March 14, 2009

On Obama's New Detention Memo

There are many people who have written far more interesting comments than I am likely to on the new memo put out by the Obama Administration on their power to detain, but the memo is sufficiently interesting to offer additional comment.

Obama's power to detain is still rigged against the proper, criminal justice oriented treatment of someone who may be a criminal. Point number one. For instance, the "evidence" that the Executive gathers to throw away the key can be very very ambiguous. Especially the "functional evidence" that can be used, like "training with Al-Qaida (as reflected in some cases by staying at Al-Qaida or Taliban safehouses that are regularly used to house militant recruits" (p. 6-7). This is very much a guilt by association type thing, and a worryingly vague standard.

The "did you or did you not train with Al-Qaida" question was one put to Binyam Mohamed. He claims to have trained with Al-Qaida in order to take up arms in the Chechen conflict. Would it be appropriate in that case for us to detain him indefinitely based on that evidence alone? And put him in Bagram, for instance, where no competent tribunal has yet been established to review the status of prisoners? (What provides for detention at Guantanamo will provide for detention at Bagram, surely, and Bagram is the new big playing field for the Executive).

More generally, I question the use of criteria such as "trained with Al-Qaida" as significant enough for indefinite detention. If the CIA retains the right to interrogate "short-term," they will certainly be pressing for the detainee to confess to something like this. As Valtin demonstrates in his writing here, interrogation is not solely for information - it is to produce confessions. And if the detainee has no warning and no rights going into this process, the likelihood that they will produce false confessions, or not realize the weight of false confessions, is increased.

I'm not convinced that the current setup, interrogation-wise, with the CIA holding detainees before transfer for a period of time only defined as "short," and the AFM, including its troubling sections, as its guide, provides anything more than a quick system by which to get as many detainees into jails like Bagram as possible. If the detainee is made helpless, and not duly informed as to on what grounds they are being held, then false confessions are an obvious consequence.

We are still in a weird twilight zone between the US criminal justice system and a gulag. Obama needs to make the picture much clearer.

Reading on the subject from TalkLeft, SCOTUSblog.

Update: A good example of what I am talking about above in terms of "evidence of a functional role" is Candace Gorman's client Mr. Razak Ali. She writes: "Razak Ali was found to be an enemy combatant because he was staying in a guesthouse in Pakistan that was raided and amongst the many men staying at that guesthouse was a man that may or may not have been a member of al-Qaeda. There has never been an allegation that Razak Ali even knew the man nevertheless a determination that the man himself is a member of al-qaeda."

Nonetheless Mr. Ali still sits in Guantanamo. Ms. Gorman sees the new definition as grounds for his release. Unfortunately, this memo only extends to Guantanamo, for now. There are plenty of people in Bagram currently wondering "wtf am I doing here?" with no answer. And Obama has so far been unwilling to provide them habeas corpus. I think the framework for unjustifiable detention remains. The broader reassurance here is sketchy. And I still wonder, based on that information about Razak Ali - "he was staying in a guesthouse in Pakistan...amongst the many men staying at that guesthouse was a man that may or may not have been a member of al-Qaeda" - if he would be up for perma-clink once Guantanamo is closed down. There needs to be a real, fair opportunity on the part of those captured to challenge their detention. Otherwise it will seem as though America is just detaining Muslims with impunity. How that would be good for our "soft power" image is beyond me.

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