Soon after taking office, President Barack Obama articulated a more limited position than his predecessor on the power to detain suspected members of al Qaeda without trial. Rather than assuming inherent authority to hold people suspected of ties to the terrorist group or its affiliates, Obama, through the Justice Department, described his power as emanating from the authorization granted by Congress to use military force against the perpetrators of the Sept. 11 attacks and defined by the laws of war. The president, the department told a federal judge in March 2009, could detain only people who were part of al Qaeda, its affiliates or their “substantial” supporters.
In Monday’s New York Times, Charlie Savage notes how lawyers in the administration have debated counterterrorism policies against this backdrop. A deep division has emerged, unsurprisingly, between the State and Defense departments, which squared off regularly during the Bush administration (with the Defense Department claiming victory more often than not).
On the one hand, the State Department’s top lawyer, Harold Koh, has argued behind-the-scenes that there is no basis in the laws of war to detain as wartime prisoners supporters of al Qaeda captured far away from the battlefield. The contours of this position emerged in a secret memo by Koh, focusing on the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia and placed in the U.S. detention camp at Guantanamo Bay, Cuba. He was accused of facilitating the travel of those who wanted to go to Afghanistan to join al Qaeda.
A federal judge ruled that Bensayah’s support justified holding him prisoner. The Justice Department asked an appeals court to uphold the ruling.
Defense Department General Counsel Jeh Johnson produced his own secret memo, arguing for “a more flexible interpretation of who could be detained under the laws of war — now or in the future,” Savage writes in Monday’s Times.
According to Savage, David Barron, the head of the Office of Legal Counsel, was called in to referee the debate, but ultimately did not:
In September 2009, national-security officials from across the government packed into the Office of Legal Counsel’s conference room on the fifth floor of the Justice Department, lining the walls, to watch Mr. Koh and Mr. Johnson debate around a long table. It was up to Mr. Barron, who sat at the head of the table, to decide who was right.
But he did not. Instead, days later, he circulated a preliminary draft memorandum stating that while the Office of Legal Counsel had found no precedents justifying the detention of mere supporters of al Qaeda who were picked up far away from enemy forces, it was not prepared to state any definitive conclusion.
In the end, the Justice Department decided to avoid the question by changing the subject. They asked to appeals court to adopt the position that actions taken by people like Bensayah effectively made them part of the terrorist organization, rather than mere supporters, and thus detainable under both the State and Defense departments’ interpretations. The appeals court has not ruled in the case.
Defense and State are aligned on other matters, Savage writes, as when two judges on the U.S. Court of Appeals for the D.C. Circuit ruled in January that the laws of armed conflict did not limit the president’s war powers. Career lawyers in the Justice Department’s Civil Division, who are defending the Guantanamo cases in federal court, wanted to use the ruling to their advantage.
But Barron, Koh and Johnson felt the administration should continue abiding by the laws of war and thought the decision was susceptible to reversal, according to Savage. The Justice Department has since cited the ruling in classified briefs as precedent while maintaining its argument that the president is bound by laws of war.
As Savage writes, “The debate would go on.”