Obama's Fifth Category: The "Untriable"

By William Fisher

In his talk at the National Archives in May, President Obama referred to five categories of prisoners currently held at Guantanamo Bay.

First, there are those who have violated American criminal laws and will be tried in federal courts. There may be as many as a dozen men in this category, five of whose trials were announced last week, including that of Khalid Sheikh Mohammed.

Second, there are detainees who violated the laws of war and who will be tried by the "new and improved" military commissions. Five prisoners were also designated for such trials last week and there is speculation that there are perhaps 25 more who fall into this category.

The third group consists of 21 detainees who have already been released by the courts.

Fourth, there are believed to be some 90 prisoners who are cleared for release and who can be transferred safely to other countries if such countries can be found.
So what is this "fifth category" of detainees? It consists of prisoners who are thought too dangerous to release, but who cannot be brought to trial.

According to The Washington Post, quoting an unnamed official, there are some 75 prisoners in this "fifth category." And the administration's position is that these people are untriable because the evidence against them was obtained through torture or because public trials would involve and potentially expose an unacceptable volume of classified material.

Which leaves the administration with the question of what to do with these people.
The Obama administration gave the human rights community apoplexy when it referred to "preventive detention." Now, it is simply saying that it's not going to seek any additional authority from Congress for such preventive detention. Which perhaps gives us a clue to the approach the administration has in mind. In a study by the Obama-friendly Center for American Progress, analyst Ken Gude suggests that the Obama administration "incarcerate detainees convicted in US criminal courts in maximum-security US prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan." (Emphasis mine.)

That latter group would presumably include the untriable. Which appears to create a neo-GITMO at Bagram in Afghanistan.

In an effort to make sense out of this maze of legal confusions, I contacted a group of people I consider to be some of the best minds in constitutional law. In my simplistic layman's way, I questioned the assertion that certain people can't be tried and opined that it seemed to me that anyone who is accused of a crime can - should, must - be tried for that crime, and can not be held indefinitely without a trial.

Here are some of their responses:

Marjorie Cohn, president of the National Lawyers Guild: The 75 aren't even being accused of crimes. If there isn't enough evidence against them besides statements that have been tortured out of them, they should be released. Judges and prosecutors who have tried terrorism cases in the United States say that the Classified Information Procedures Act effectively protects classified material. If there is probable cause to believe that someone has committed a crime, he should be charged and tried. If not, he should be released. Indefinite detention violates the International Covenant on Civil and Political Rights, a treaty the United States has ratified which makes it part of US law.

Jameel Jaffer, director of the National Security Program for the American Civil Liberties Union: We should be very skeptical of the proposition that there are prisoners who can't be prosecuted but are too dangerous to release. The United States has sweeping detention authority under both domestic law and international humanitarian law - authority that is broad enough to reach both terrorists and battlefield combatants. The criminal laws have been used to successfully prosecute not only people who have planned terrorist attacks but also people who have attended training camps or raised money for terrorist groups.

In criminal trials, the government can protect intelligence sources and methods by relying on the Classified Information Procedures Act. It's true that federal courts are unlikely to allow the government to rely on evidence derived from torture, but that's a problem with the government's evidence, not a problem with the courts. The courts reject that kind of "evidence" not only because torture is illegal but because evidence derived from torture is unreliable. And if such evidence is too unreliable to justify detention after trial, it's surely too unreliable to justify detention without trial.

Michael Ratner, president of the Center for Constitutional Rights: I do not think there is any place for preventive detention in a country that claims it is a democracy under the rule of the law. We opposed it under Bush and it looks no more legal when rewrapped by Obama. The constitution and international law mandates that people be charged and tried or released. The claim that some GITMO detainees can't be tried is a pretext that will usher in a scheme that is contrary to 225 years of US law. There is no middle ground when it comes to human freedom. The claim that some GITMO detainees can be held without charges and trial is an assertion I hoped never to hear in a country claiming it acts under the rule of law. Preventive detention is the road to perdition. It sets a precedent that will haunt our justice system for all time.

Gabor Rona, international legal director of Human Rights First: The notion that we can hold GITMO detainees under the laws of war is wrong - a misapplication of those laws. There is presently not one GITMO detainee whose detention is authorized by the laws of war. Only domestic law governs detention in wars that are not between two or more states. For that reason, and because the US does not have an administrative detention scheme (which I think would necessarily be unconstitutional, although not necessarily in violation of international human rights law) all GITMO detainees must be either charged or released.

David Cole, professor at the Georgetown University Law Center: I don't think there is an obligation to try an enemy combatant for a war crime while the conflict is ongoing. For example, we did not try many Germans responsible for war crimes until the war was concluded, and issues of secrecy were less complicated. And I'm sure there were many we did not try at all. So I don't think there is an obligation to try. There is an obligation to ensure that anyone detained be provided a full and fair hearing on his status, that the definition of "enemy combatant" be defined narrowly, and that all detainees be treated humanely. But not that they be tried.
Brian J. Foley, visiting associate professor of law, Boston University: Ultimately this shows that the problem is that terrorism is something between crime and war. Though we know that the most effective way of combating terrorism groups is through police method, it seems akin to fighting "organized crime." Given that, then it seems that the court system we use should be geared more toward the criminal paradigm, which ultimately tests the government's claims that a person not wearing an enemy uniform has harmed, or is planning to harm, citizens.

The Obama Administration wants to be able to make those claims about people but not have them ever subjected to testing. We know that police often identify the wrong person; indeed, our court system itself is not perfect at correcting such government errors, as our history of wrongful convictions shows. So there needs to be testing of EVERY government claim that someone is planning an attack and/or is dangerous and therefore must be imprisoned. It is very often disputable whether someone is planning terrorist acts, ESPECIALLY when the only evidence is evidence gained by torture or is so-called "classified" evidence.

Under the Obama plan, a US government acting in error or in bad faith can detain forever anybody it claims is planning a terrorist attack. We have to be clear that the Administration is claiming a sweeping power with no check, a power - lifelong detention - that is rare in criminal law and rare in war (given that, unlike most wars, the GWOT will never end). The GWOT is Big Government's BFF ("best friend forever") and is the mortal enemy of democracy and human rights. This plan is the ultimate version of the government saying, "Just trust us" - a trust that is anathema to the spirit of the Founding Fathers.

The government appears afraid to take any risk at all that someone released might cause harm. But the assumption that someone might cause harm is assumption based on mere faith and belief, not on evidence. The bottom line is this makes no sense: the evidence gained by coercion is likely unreliable, and the secret evidence might be erroneous or even manufactured for political ends. Ultimately it's an epistemological question: How can you know someone is dangerous if it is based on evidence you obtained through coercion and is therefore unreliable, or if it is based on evidence you are afraid to have tested - again, we know our intelligence agencies are not perfect and make mistakes. The fact of the matter is that we have a system and a widely-held norm (among many nations and internationally) that says "prove it" to a government when the government wants to take away somebody's life or liberty. The real question at the heart of this whole dispute - a question that no one seems to want to ask openly, is, "Are we brave enough to adhere to such norm to prevent the many ills that can flow from giving the government the power to detain people indefinitely on its own say-so?" I don't think that the people arguing for this power are brave enough; I think they are cowards. Their cowardice will turn our country into something less than a democracy. "Land of the free, home of the brave" - freedom and bravery go together. You can't have freedom if you are not brave.

David Frakt, professor at Western State University Law School and former successful defense counsel to a Guantanamo detainee: The assertion that there are 75 detainees who are too dangerous to release, but can't be prosecuted, and therefore must be held indefinitely, defies common sense.

It is true that as a matter of the law of war that during an armed conflict, a person who is detained for taking part in the armed conflict may be held until the resolution of the conflict. Each of the detainees being held has been determined in a Combatant Status Review Tribunal to have been an "enemy combatant."

This does not mean that the detainee committed a crime. It could simply mean that the detainee fought against US or allied forces when they invaded Afghanistan or was prepared to do so if they had the opportunity. The government might feel that such detainees should not be released because they would return to the battlefield in an ongoing conflict. What is more troubling is the notion that some of the detainees are believed to have committed crimes but that such crimes can't be proven in a court of law. I find this hard to believe. Virtually any association with Al Qaeda is enough to support a federal charge of material support to terrorism, which would likely lead to a lengthy prison sentence. So why can't these people be tried - because they didn't commit a crime, or because the crimes they are believed to have committed can't be proved in court? If it is that the crimes can't be proven in court, why is that? Is it because of the government's belief that all of the evidence they have against an individual would be suppressed as the product of torture? In my opinion, if the only evidence we have is derived from torture, then we can't have any degree of confidence in the reliability of such evidence.

The government has shown a willingness to try several individuals who have admittedly been tortured based on the alleged existence of independent "clean" evidence, so the mere fact that someone was tortured is clearly not a bar to prosecution in the view of the Obama Administration. If there is independent corroborating evidence, then let the individuals be tried. If there is no non-torture derived evidence, then the government should not be able to even prove by a preponderance of the evidence that an individual should be held. We have seen repeatedly in the habeas corpus litigation that the government's evidence did not hold up to judicial scrutiny.

The Administration needs to come clean on who they believe fits into this category and why. Otherwise, we are just left to speculate.

Chip Pitts, president of the Bill of Rights Defense Committee: You're right about the detention (but not necessarily right about the laws of war enabling us to hold them until "hostilities" come to an end - if by that you mean hostilities in the so-called Global War on Terror or GWOT).

The laws of war apply to the detainees variously (if at all! - don't forget that the GWOT framework is novel and legally and factually problematic in the extreme, and in my view and that of many other international lawyers and scholars it's utterly incorrect and inapplicable both in terms of the traditional law of war and in terms of human rights and constitutional law which apply even at all times even when there is no war).

Real wartime, i.e. battlefield detainees from Iraq or Afghanistan, are POWs and should rightly be seen as in a completely different legal category from civilians suspected of crime or simply rounded up and sent to GITMO, Bagram, or any of the secret prisons or interrogation sites used by the CIA, the government, and its allies. The former may be held until the end of those particular hostilities and the latter must be tried (supposedly under speedy trials as well as the other legal guarantees of fair trials) or promptly released.

You're right that indefinite detention without trial or legal due process of either category - of anyone, in fact - is outlawed both by the law of war and by international human rights law (as well as US constitutional law).

Moreover, there's no question that not all of the people now at GITMO are even accused of being criminals (war criminals or civilian criminals), all of which means that your question goes back again to the conceptual and legal framework with which we're viewing the situation; the legitimacy and legality of detention in general and indefinite detention in particular; and the individual facts of each person's case (to determine whether there are any legitimate legal grounds at all for detention and/or trial) - the interpretation of which becomes so much harder in light of the use of torture to coerce unreliable testimony.

So not even all the Constitutional experts agree precisely on the legal basis for putting a prisoner into that "fifth category" - the ones we're told can't be tried but are too dangerous to release. Largely because the Bush Administration tried to create its own law, the legal landscape is confused and confusing. But that doesn't help the Obama Administration. It still faces the question of what to do with these people.

In doing so, it faces a group - a very small group - of bad options. It can charge a person with a crime and risk being embarrassed by having tainted evidence thrown out of court. A court might also find that its evidence is insufficient or unreliable. A defendant might actually be exonerated or win on appeal - what then?

When, for one reason or another, you reject all but one of these options, you need then to accept that we are on our way to warehousing people.

For Americans, this is contrary to everything we've ever been taught about our system of justice.