Our Nation’s war on terror continues to raise difficult legal and political issues for America. We live in a time of great uncertainty, a time when we define ourselves, both here and abroad, by our actions and our policies. The stakes are high, making it essential that we conduct ourselves in ways that uphold our constitutional principles and affirm our commitment to the rule of law.

The Constitution must guide us in our efforts to combat terrorism. Our system of separated powers and checks and balances provides us with the tools to preserve essential liberties and formulate sound policies. To effectuate this, the executive and legislative branches need to work together with common purpose while respecting their separate roles and guarding against abuses of power by the other branch. Likewise, our national security initiatives need to preserve the role of our federal judiciary to resolve disputes between the branches, rule on constitutional questions and protect individual liberties.

Since the 2001 terrorist attacks, the ABA has adopted policies on many of the issues that have come into focus as the justice system and our lawmakers have adopted new strategies to meet changing circumstances and new threats. The Association’s policy positions are predicated on respect and support for our constitutional system of separated powers and reflect a commitment to ensuring that our government achieves the proper balance in protecting both the Nation’s security and our core constitutional values.

On January 22, 2009, President Barack Obama issued three executive orders and one presidential memorandum, setting in motion plans to reverse policies and actions of Bush Administration regarding the detention, treatment and prosecution of terrorist suspects who were captured after the terrorist attacks of September 11, 2001. When President Obama took office, over 280 terrorist suspects were being held at Guantanamo Bay, some of whom had been there for as long as 6 years, and most for at least 4 years. Many of them were declared enemy combatants and approximately 20 were officially charged and awaiting military commission trials. (See Key Resource documents for more information on the development of the Bush Administration's terrorism policies and their modification by Congress and the federal courts.)

A. Executive Order Requiring the Closure of Guantánamo Bay

Following through on a campaign pledge, President Obama’s first Executive Order directed that the Guantánamo Bay military prison be closed "as soon as practicable, and no later than one year from the date of this order. Prior to closure, the Order requires a thorough review of each detainee’s case.

The Order instructs Secretary of Defense Robert Gates to take steps to halt all military commission proceedings pending an immediate and comprehensive review of all Guantánamo detentions, coordinated by the Attorney General to determine whether it is possible to transfer detainees to third countries, consistent with national security .The Order directs the Secretary of State to seek international cooperation aimed at achieving the transfers of detainees.

If transfer is not approved, a second review will determine whether prosecution is possible and in what forum. The preference is for prosecution in Article III courts or under the Uniform Code of Military Justice (UCMJ), but military commissions, perhaps with revised authorities, would remain an option. If there are detainees who cannot be transferred or prosecuted, the review will examine the lawful options for dealing with them.

B. Presidential Memorandum on Review of the Detention of al-Marri

In the memorandum, the President instructed the Attorney General, the Secretaries of Defense, State, and Homeland Security, and the Director of National Intelligence to conduct a review of the status of the detainee Ali Saleh Kahlah al-Marri, who is currently held at the Naval Brig in Charleston, South Carolina. This will ensure that the al-Marri case receives the same kind of legal and factual review that is being undertaken at Guantánamo.

C. Executive Order requiring All Governmental Agencies to Conduct Interrogations in Conformity with the Army Field Manual

President Obama’s second Executive Order revokes President Bush’s July 2007 Executive Order 13440 that interpreted Common Article 3 of the Geneva Conventions. It requires that all interrogations of detainees in armed conflict, by any government agency, including the Central Intelligence Agency, follow the Army Field Manual interrogation guidelines.

The Order also requires the International Committee of the Red Cross to have access to detainees in a manner consistent with Department of Defense regulations and practice. It also orders the CIA to close all existing detention facilities and prohibits it from operating detention facilities in the future.

Finally, the Order creates a Special Interagency Task Force on Interrogation and Transfer Policies and assigns it two missions: to conduct a review of the Army Field Manual interrogation guidelines to determine whether different or additional guidance is necessary for the CIA; and to examine U.S. policies with regard to rendition-- the practice of individuals to third countries -- to be sure that they comply with domestic law, international treaties and other U.S. obligations and are sufficient to ensure that individuals do no face torture and cruel treatment if transferred. This Task Force, chaired by the Attorney General with the Secretary of Defense and the Director of National Intelligence as co-Vice Chairs, is required to submit a report to the President with 180 days regarding its findings and recommendations.

D. Executive Order Requiring Review of Detention Policies

The third Executive Order creates a Special Task Force, co-chaired by the Attorney General and the Secretary of Defense, to conduct a review of detainee policy going forward. The group will consider policy options for apprehension, detention, trial, transfer, or release of detainees. The Special Task Force must submit its report to the President within 180 days.

Shortly after the EO’s were issued, ABA President Thomas H. Wells issued a statement praising President Obama’s actions. The ABA has advocated for a many of these changes over the past several years, with one notable exception: the ABA has no policy on Guantánamo and therefore neither supports nor opposes the President’s decision to close the base. ABA vigorously supports the other major components of the President’s three Executive Orders, and considers them strong step in the right direction with regard to respecting and restoring the due process rights of terrorist suspects in U.S. custody, and repairing this nation’s standing in the world community. The ABA will monitor developments and will continue to urge that detainees receive fair and humane treatment have full access to counsel and that whenever possible, they are prosecuted in an article III court and or other regularly constituted tribunal where they will be accorded due process and have the effective assistance of counsel.

1. Ali Saleh Kahleh al-Marri

On February 27, the Department of Justice (DoJ) filed criminal charges in U.S. district court against Ali Saleh Kahleh al-Marri, the only person classified as an "enemy combatant" on U.S. soil. DoJ charged him with conspiracy to provide material support and resources to a foreign terrorist organization, and providing material support and resources to a foreign terrorist organization.

The FBI originally arrested Al-Marri, a native of Qatar, in Peoria, Ill in 2001, as a material witness in the 9/11 terrorist attacks. In 2003, before his trial, President Bush classified him as an enemy combatant and ordered him held in the Charleston Naval Brig without charges.

Al-Marri petitioned for a writ of habeas corpus to secure his release from military imprisonment. In June 2007, U.S. Court of Appeals for the Fourth Circuit concluded the President lacks power to order the military to seize and indefinitely detain al-Marri and granted al-Marri habeas relief. The government requested an en banc rehearing, and in July 2008, the Fourth Circuit narrowly ruled that the President had the legal authority to imprison al-Marri indefinitely without charge based on the facts alleged. In December 2008, the Supreme Court agreed to hear his case. The American Bar Association filed an amicus brief arguing that "constitutionally guaranteed criminal due process rights that are available to all citizens and persons lawfully present in the United States may not be abrogated during military detention unless such persons are given the opportunity for prompt meaningful judicial review."

Ultimately, the Supreme Court never heard the case. After filing criminal charges against al-Marri in February, DoJ moved to dismiss the case as moot and sought al-Marri’s transfer from military to civilian custody. On March 6, the Supreme Court concurred and dismissed challenges to his detention.

Enemy Combatant Definition

On March 13, the DoJ withdrew the definition of "enemy combatant". The Department stated in a filing to the District Court for the District of Columbia that is was submitting "a new standard for the government’s authority to hold detainees at the Guantánamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress."

3. Bagram Detainees: Al Maqaleh v. Gates

On April 10, the Obama administration appealed the ruling of the U.S. District Court for the District of Columbia in the case of al Maqaleh et al., v. Gates et al., granting three detainees at a U.S. military prison at Bagram Air Base, Afghanistan, the right to challenge their detention in U.S. courts, and asked the court to postpone hearings on the plaintiffs' habeas corpus petitions. The DoJ argued, among other things, that the consequences of immediate compliance would inhibit the future capture of Pakistani citizens for detention by U.S. forces in Afghanistan. However, officials did not foreclose the possibility that there would be a change of policy after the completion in July of the comprehensive review of detainee policies ordered by President Obama during his first day on office.

The case was brought by four detainees who are non-U.S. citizens captured in foreign lands and brought to the Bagram facility for purposes of detention. They disputed the government’s claim that they constitute "enemy combatants," and argued that the procedures used to categorize them, as unlawful enemy combatants were an inadequate substitute for habeas corpus and the "objective degree of control" the U.S. exercises at Bagram is comparable to that at Guantánamo.

Narrowly crafted, court's ruling essentially grants all non-Afghan Bagram detainees captured outside of Afghanistan and held without due process for some time the same right to federal court review that the Supreme Court gave last year to similarly situated Guantánamo detainees. The ruling did not extend to the one petitioner who was an Afghan citizen. The distinction was important to Judge Bates, who wrote the decision for the court. He said: "It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which [lawyers for the government] correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries -- far from any Afghan battlefield -- and then bring them to a theater of war, where the Constitution arguably may not reach. Such rendition resurrects the concern that the Executive could move detainees physically beyond the reach of the Constitution and detain them indefinitely."

Although it is estimated that the ruling will only affect about 30 of the estimated 600 detainees at Bagram, Judge Bates found the process for reviewing enemy combatant status even "less sophisticated and more erroneous than the process the Supreme Court deemed inadequate at Guantánamo in the Boumedienne decision, which may have important ramifications for all the other detainees at Bagram. It is also important to note that the decision emphasized that the result might have been different had there been a more robust detention screening process, and that the right to habeas review may attach only after a reasonable length of time in captivity.

Following President Obama’s Executive Order directing the closure of Guantánamo Bay, numerous bills were introduced prohibiting the use of funds to transfer detainees held at Guantánamo to various parts of the country. They include: S. 370 (Inhofe, R-OK), H.R. 817 (Gingrey, R-GA), H.R. 829 (Myrick, R-NC), H.R. 148 (Jenkins, R-KS), H.R. 1073 (Rooney, R-FL), H.R. 1186 (Forbes, R-VA) and H.R. 1566 (Kline, R-MN). No action has been taken, or is expected to be taken, on any of the bills.

On March 4, 2009, Rep. Adam Schiff (D-CA) introduced H.R. 1315 , the Terrorist Detainees Procedures Act of 2009. The legislation conforms with the first EO in that would require the detention facility at Guantánamo Bay be closed by December 31, 2009. It also would establish the new status review procedure conducted by a panel of three military judges using established courts-martial procedures for determine if a detainee should be designated and prosecuted as an unlawful enemy combatant. Detainees, determined to be an unlawful enemy combatant, could be: transferred to a military or civilian detention facility in the U.S., charged with a violation of U.S. or international law, and tried by courts-martial or in federal court; transferred to an international tribunal for trial; transferred to a NATO-run detention facility or another country, provided they will not be tortured; or held in accordance with the law of armed conflict until either the end of hostilities directly related to the person’s initial detention, or such time as the person is determined to no longer be a threat. Subsequent to the bill’s introduction, the Obama Administration announced that it would not classify any detainee as an enemy combatant.

On April 22,2009, Senate Armed Services Committee Chairman Carl Levin (D-MI) and Ranking Member John McCain (R-AZ) released its November 2008 report (PDF) of its inquiry into the treatment of detainees in U.S. custody. The Committee concluded that "senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

• We must protect the rights afforded in the Constitution and the delicate balance of power the Constitution provides among the branches of government during times when it may seem popular or expedient to sidestep basic Constitutional values.
  


• The ABA recommendations seek to balance practical and legal concerns regarding trials of terrorist war criminals, and to preserve traditional core values of the American justice system.


• The United States should set a strong example for upholding the rule of law by respecting its legal obligations regarding detainees in its custody.


• Torture and other cruel, inhuman or degrading treatment of detainees violate U.S. values and image.


• By direct constitutional demand, the writ of habeas corpus provides access to the federal courts to challenge detentions of persons by the Executive.


• The Congress, in coordination with the Executive Branch, should establish clear standards and procedures governing detention of a U.S. citizen or resident, pursuant to 18 U.S.C. 4001 (a) which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

In February 2009, the ABA adopted policy (DOC) urging the Obama administration to ensure that any detainees who are expected to be charged with crimes be prosecuted in federal district courts, unless the attorney general certifies they cannot be prosecuted in such courts but can be prosecuted in other regularly constituted courts consistent with due process, the laws of war, the Geneva Conventions and the Uniform Code of Military Justice. The policy also urged that any detainees no longer considered to be enemy combatants be released or resettled, and any currently detained enemy combatants be granted prompt habeas corpus hearings with full due process.

In August 2007, the ABA adopted policy (DOC) calling on Congress to override the executive order that interpreted the United States’ obligations under the Geneva Conventions relating to detainee treatment. Specifically, the ABA called upon Congress to establish the Army Field Manual as the uniform standard for the treatment of detainees in U.S. custody.

In August 2004, The Association adopted policy (PDF) at the 2004 Annual Meeting condemning the use of torture and cruel, inhuman, and degrading treatment of detainees in Iraq, Afghanistan and elsewhere by U.S. personnel. The policy also calls upon the Administration to comply fully with the U.S. Constitution and international laws and conventions ratified by the U.S. that outlaw torture, and urges the President and Congress to establish an independent, bipartisan commission with subpoena power to investigate the abuses of detainees.

For additional relevant policies, please click here.

April 27, 2009