Administration Signals It Won’t Push Legal Limits of Terrorism Detention

by Chisun Lee, ProPublica - February 4, 2010 5:46 pm EST

The five-page letter
(PDF) that U.S. Attorney General Eric Holder issued this week defending
the decision to treat the Christmas Day bomber suspect as a criminal
suspect, rather than as a wartime captive, offered new insight into the
Obama administration's view of the limits of preventive detention.

The letter suggests that the administration sees virtually no legal foundation for holding terrorism suspects arrested on U.S. soil in preventive detention and has very little interest in trying to create
any.

He didn't confine his reasoning to the specifics of Umar Farouk Abdulmutallab's case, but instead offered an overarching view of the current state of the law.

"Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney," Holder wrote. "But the
government's legal authority to do so is far from clear."

Holder suggested that the administration would need to see a "court-approved system" for domestic military detentions to conclude that it did have the authority.

The letter was sent to a group of senators who included such leading advocates for a legislatively created preventive detention system as Lindsey Graham, R-S.C. The senators were outraged that Abdulmutallab was given access to a lawyer and is being prosecuted in a civilian
court, rather than being treated as a military prisoner.

Holder acknowledged that a 2008 federal appeals court decision said the president had the authority to put an al-Qaida suspect arrested in the United States into military detention as part of the post-9/11 wartime
response. In that case, Ali Saleh Kahlah al-Marri,
a legal U.S. resident but not a citizen, was arrested in December 2001
in Peoria, Ill., and held for nearly six years in isolation as an enemy
combatant. After protracted litigation he was permitted to challenge
his military detention in federal court. A lawyer represented him in
that unsuccessful habeas challenge,
but wasn't present while he was being interrogated in military custody
-- the issue critics of the administration have been exercised about in
Abdulmutallab's case.

The Supreme Court agreed to review al-Marri's case last year, but vacated the appeals court decision after the Obama Justice Department sought to transfer him to civilian custody. He was later successfully
prosecuted him in the criminal justice system.

The Bush administration had touted the al-Marri decision as a vindication of the president's detention power, and Abdulmutallab's case resembles al-Marri's in certain ways. He was arrested on U.S.
soil, in Detroit, after allegedly trying to blow up a jet carrying
nearly 300 people on Dec. 25, 2009. He is suspected of having trained
with al-Qaida, and he is a citizen of Nigeria, not of the United
States.

Holder in his letter characterized the al-Marri case as having "raised serious statutory and constitutional questions in the courts concerning the lawfulness of the government's actions."

Still, Holder didn't explicitly say never to domestic military detentions. Legal scholars speculate that there may be some scenarios -- perhaps involving an emergency capture based solely on foreign
intelligence too sensitive to use in court -- that would require a
president to go the al-Marri route or set a suspect free.