Global Policy Forum

New Rules on Terror Custody Being Drafted




By David S. Cloud and Julian E. Barnes

April 15, 2010

The Obama administration is for the first time drafting classified guidelines to help the government determine whether newly captured terrorism suspects will be prosecuted or held indefinitely without trial, senior U.S. officials said.

The draft document envisions that a small number of suspected terrorists captured in the future could be detained and interrogated in an overseas prison, several of the officials said. At least in the short term, Bagram air base in Afghanistan would be the most likely prison to hold the suspects, they said.

But approval of the guidelines is being delayed, primarily by State Department officials who are concerned that formalizing the rules will lead inevitably to greater use of long-term detention by the administration under conditions similar to those at the Guantanamo Bay prison in Cuba, which President Obama has pledged to close.

The debate over the rules emerged from the task forces set up by Obama to study detainee issues after he signed executive orders last year abolishing many of the practices instituted during the George W. Bush administration. Officials crafting the replacement policies said the government has to rethink how to respond if a senior Al Qaeda member is captured overseas.

"There's a process of working out procedures," a senior official said. The end product will probably be a secret document that "articulates that if tomorrow we capture a person, what do we do with him and how do we make that decision."

The deliberations are also part of a larger internal fight over how far Obama will go in replicating detention practices used by President Bush, a trend that human rights groups and even some officials working in the Obama administration are attempting to halt.

The guidelines were not directly requested by Obama, but senior advisors believe that without them, they might be forced to make a hasty decision on how to handle a captured suspected terrorist.

A former State Department official said that the Obama administration, by not laying out a clear policy for holding terrorism suspects, is resorting to airstrikes and other covert tactics in an effort to kill militants. "We are inadvertently creating incentives for people to be killed rather than captured," said John B. Bellinger III, a State Department legal advisor during the Bush administration. "And that may be why we are seeing relatively few people captured."

Obama administration officials deny that they are opting for killing over capturing, but acknowledge that clearer guidance for how future captives will be handled is needed.

The internal discussions cover not only what types of prisoners will be placed in long-term detention or prosecuted, but also where to hold them, how interrogations will be handled and other issues, the officials said.

Administration officials who are skeptical about the proposed guidelines argue that the government may never encounter a situation in which captured suspected militants would need to be held without trial. Even top Al Qaeda figures could be legally interrogated and then prosecuted, either in civilian or military courts, or turned over to a foreign government, they argue.

There is no need for guidelines, these officials say, until the military or CIA actually captures someone. Spelling out guidelines beforehand will only make it more likely that additional prisoners will be imprisoned without access to U.S. courts, said an official involved.

But officials who favor the new rules, including at the Pentagon, say they will ensure that all options are considered whenever intelligence is developed on the whereabouts of a wanted terrorism suspect.

In those situations, Obama and his advisors would have to decide, sometimes quickly, whether CIA or special operations forces should seek to capture or kill the individual. If a suspect is to be captured, they must decide where he will be held and whether he should be eventually prosecuted.

Until recently, there had been little agreement within the government on where to send a newly captured suspected Al Qaeda member whom the U.S. wanted to interrogate but lacked the evidence to prosecute.

Atty. Gen. Eric H. Holder Jr. alluded to the continuing discussions about detention during congressional testimony Wednesday. Asked hypothetically where a newly captured Al Qaeda member would be detained, he replied: "I think we have to come up with options," but did not elaborate.

A senior official involved in the discussions said the issue of where to hold newly captured prisoners "has been discussed and some conclusions have been reached."

Bagram air base is the most likely location, other officials said, in part because prisoners there do not currently have access to U.S. courts, although that question is being litigated. Other sites also are being considered. Under Supreme Court rulings, if brought to the U.S. or to Guantanamo, a detainee could challenge his detention in U.S. courts.

Without the option of holding prisoners indefinitely outside the United States, the administration has three choices when it locates terrorism suspects: bringing them to the U.S. for prosecution, turning them over to foreign governments, or killing them, using armed drones or other covert methods.

Obama said last year that he might use long-term detention for new terrorism suspects -- a practice initiated by the Bush administration at Guantanamo Bay -- but he has yet to place any new prisoners in Guantanamo or Bagram since taking office.

For future captures, Obama intends to rely more than Bush did on prosecution, in civilian or military courts, while holding long-term detention "in reserve," as one senior official put it.

But the recent captures of several militants with suspected ties to Al Qaeda, including Umar Farouk Abdulmutallab, a Nigerian who allegedly sought to set off a bomb on a flight to Detroit, and Mullah Abdul Ghani Baradar, a senior Taliban military commander captured in Pakistan, highlighted the need for clearer procedures, one congressional official said.

The decision to prosecute Abdulmutallab rather than place him in indefinite detention for interrogation was criticized by Republicans in Congress. Administration officials respond that Abdulmutallab has provided useful intelligence under questioning, even after being designated for prosecution and read his rights against self-incrimination.

In the case of Baradar, Pakistan has kept him in its custody and handled his interrogation, with CIA assistance.

But that arrangement has yielded little useful intelligence so far from Baradar, who is believed to have extensive knowledge of Taliban operations, finances and dealings with Al Qaeda. To some military officials, Baradar's case is an example of why the U.S. should take custody itself of high-level militants who may have useful intelligence.

"Right up until the day Baradar was detained, he was running the war for the Taliban," said a senior military official. But "the value of any intelligence he might have diminishes rapidly each day he is held" by the Pakistanis, the official said.

Officials are guarded about which militants they may choose to hold without trial. Last year, the Justice Department said Al Qaeda members and those who provided "substantial support" to Al Qaeda would be candidates for indefinite detention, a standard meant to show that Obama would be more discriminating than his predecessor about who was held without trial.

The administration has not explained publicly what constitutes providing substantial support to Al Qaeda. "It's case by case," said a senior official.

In practice, officials said, long-term detention probably would not be used for Taliban fighters captured in Afghanistan, who are treated as war prisoners. It also is unlikely to be used for the most senior Al Qaeda leaders, Osama bin Laden and Ayman Zawahiri, who probably would be prosecuted if captured.


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