Bush Counsel: How U.S. Classifies Terror Suspects

March 2, 2004
Legal Times.com, March 1, 2004 by Vanessa Blum
Just four days after the Supreme Court agreed to review the military detention of Jose Padilla, the Bush administration outlined for the first time the steps it takes in designating U.S. citizens enemy combatants.
 
In a rare public appearance Feb. 24 before the American Bar Association, White House Counsel Alberto Gonzales described an elaborate decision-making process, involving recommendations and analyses from the Central Intelligence Agency, the Department of Defense, and the Department of Justice.
 
According to Gonzales, the process begins with a preliminary assessment by the Justice Department's Office of Legal Counsel. Lawyers must find that an individual meets the legal definition of an enemy combatant set out by the Supreme Court in the 1942 Nazi saboteur case Ex parte Quirin. In Quirin, the Court stated that "citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance, and direction enter this country bent on hostile acts are enemy belligerents."
 
If the individual meets the legal threshold and government officials initially determine that an enemy combatant designation is desirable, then each agency provides a written recommendation to the White House. According to Gonzales, the agencies consider a suspect's threat potential, his ability to provide intelligence, and other concerns, such as the possibility that criminal prosecution might compromise sensitive intelligence sources. The attorney general's submission includes a factual memo drawn up by the Federal Bureau of Investigation and the Criminal Division and a formal legal opinion from the Office of Legal Counsel.
 
Ultimately, the president makes a final determination based on written assessments and recommendations from all the agencies.
 
"As you can see, executive branch decision-making is not haphazard, but elaborate and careful," Gonzales said during the ABA speech. "Although these specific steps are not required by law, we have followed them in our discretion, in order to make sure that — in this context, as in all others — the president's commander-in-chief authority is exercised in a reasoned and deliberate manner."
 
By raising the curtain on the internal deliberations that led to Padilla's designation as an enemy combatant, the administration clearly hoped to beat back critics' claims that his detention amounts to a legal black hole.
 
Despite the attempt at transparency, lawyers and civil liberties advocates call the executive branch procedures described by Gonzales inadequate.
 
"The government continues to show no shame about jailing American citizens in military prisons indefinitely, without charge and without any chance to see a lawyer," says Jonathan Freiman, a New Haven, Conn., appellate litigator who filed an amicus brief in Padilla's case before the U.S. Court of Appeals for the 2nd Circuit. "It's a bureaucracy guided by no standards."
 
Freiman, a senior fellow at Yale Law School, dismisses Gonzales' speech as a public relations ploy aimed at the high court and those who may file amicus briefs in opposition to the government. He adds, "What they don't want to see is the groundswell against the government that was seen in the Guantanamo case."
 
ON THE DEFENSIVE
 
The Bush administration has found itself on the defensive since the Supreme Court agreed last fall to hear two cases challenging the lengthy detentions of enemy fighters at Guantanamo Bay. The Court's subsequent decisions to review the cases of citizen enemy combatants Yaser Esam Hamdi and Padilla set the stage for a potentially explosive showdown over the administration's broad assertions of executive power in the war on terrorism.
 
According to two lawyers affiliated with the ABA, Gonzales was looking for a forum in which to address the administration's enemy combatant policy and initiated conversations about making an appearance. His remarks before the ABA's Standing Committee on Law and National Security followed a Feb. 13 address by Defense Secretary Donald Rumsfeld to the Miami Chamber of Commerce explaining the process for reviewing the detention of prisoners held at Guantanamo Bay. Gonzales' speech also came as the administration brought war crimes charges against two alleged al Qaeda members held at Guantanamo Bay, for what could be the first military commission trials in half a century.
 
Gonzales made a point of clarifying the administration's position — first articulated in December 2003 — that U.S. citizens held as enemy combatants will be provided with legal counsel when Defense Department officials determine that such a move will not interfere with intelligence collection. Gonzales declined a request for an interview about the speech.
 
"I think it's pretty clear this speech is part of a coordinated push by the administration to explain themselves better," says former Associate White House Counsel Bradford Berenson, a partner in the D.C. office of Sidley Austin Brown & Wood. "Their failure to be more transparent about what they're doing and contribute to the public debate has disadvantaged them."
 
Berenson adds that while the process for designating enemy combatants plays out behind closed doors, the involvement of different agencies ensures vigorous debate. "Just because this is a process that takes place entirely within the executive branch doesn't mean there aren't people raising difficult questions or playing devil's advocate," he says.
 
In the wake of the Sept. 11, 2001, terrorist attacks, the federal government came under fire for not promoting more internal information-sharing and coordination between various intelligence and law enforcement agencies. The process described by Gonzales seems in part an effort to address communication failures that may have allowed terrorists to slip through the cracks in the past.
 
But civil liberties advocates say the procedures in place amount to a "trust me" system and need more traditional checks and balances.
 
"Our history suggests we can't rely on the executive branch to check itself," says Georgetown University Law Center professor David Cole. "Without the checks of the other political branches and a check of public scrutiny, there is a real danger abuses will occur."
 
Steven Aftergood, director of the government secrecy project at the D.C.- based Federation of American Scientists, says that the administration's military detention of U.S. citizens requires a response from Congress.
 
"What we have is a novel set of circumstances that requires legislative action," says Aftergood. "I think we are suffering from the fact that the majority party in Congress is the same as the party in the White House, and as a result the natural tension that would otherwise exist has been muted."
 
Indeed, getting Congress to act has not been easy.
 
Rep. Adam Schiff (D-Calif.) has been pushing legislation in the House for more than a year that would authorize the detention of enemy combatants, but require timely access to counsel, judicial review, and congressional oversight. So far, he has been unable to persuade the House Judiciary Committee to even hold a hearing on the issue.
 
"There's still a lot that Congress needs to learn about this process, and I think there are some additional safeguards that need to be employed, particularly when you're talking about American citizens arrested on American soil," Schiff says. "Privately many of my colleagues agree with me, but there's a real unwillingness to confront the administration on anything connected to the war on terrorism."
 
AIDING AL QAEDA
 
To date, Padilla is the only American citizen to be designated an enemy combatant after being arrested on American soil. Hamdi, a Saudi national born in Louisiana, was taken into U.S. custody on the battlefield in Afghanistan. A third enemy combatant held inside the United States, Ali Saleh Kahlah al- Marri, is a Qatari citizen. Al-Marri was in the United States on a student visa and faced minor criminal charges before his transfer to military custody.
 
In other cases, the administration may have contemplated enemy combatant designation but rejected the option for policy or legal reasons.
 
For instance, Gonzales said, the review process was halted on more than one occasion after the Office of Legal Counsel determined an individual did not clearly meet the Quirin standard for an enemy belligerent.
 
One former administration lawyer says the Office of Legal Counsel has interpreted the standard to demand more than that an individual supports or sympathizes with al Qaeda.
 
"If someone is raising money for al Qaeda, you might prosecute them for material support of terrorism. It would be much harder to say that person is an enemy combatant," the lawyer says. "The dividing line is if someone is involved in furthering or carrying out hostile operations."
 
Still, the administration's critics question the Justice Department's reliance on a 60-year-old precedent.
 
"To rely on Quirin for the proposition that you can hold American citizens indefinitely without access to counsel is ridiculous," says Neal Sonnett, chairman of the ABA Task Force on the Treatment of Enemy Combatants. "The combatants in that case had lawyers. They were charged with offenses. And they had trials. They were able to defend themselves," he says.
 
Others complain that the administration evokes international law only when it is convenient and ignores its requirements in other contexts.
 
"Gonzales argues that what really governs and constrains their conduct is the law of war, but the administration hasn't remotely applied the laws of war to its detention of Padilla, Hamdi, or those detained at Guantanamo," says Deborah Pearlstein, director of the U.S. law and security program at Human Rights First, formerly known as the Lawyers Committee for Human Rights. "Not only are they not applying U.S. criminal and constitutional law, they're not following international law. We're left with the conclusion that they think no law applies."
 
Gonzales said in his speech that it is the government's critics who "apply the wrong legal paradigm," adding, "Nothing in the law of war has ever required a country to charge enemy combatants with crimes, provide them access to counsel, or allow them to challenge their detention in court."