The LWOT: White House releases National Security Strategy; Bagram detainees denied habeas rights

New National Security Strategy focuses on terror threat, domestic radicalization

U.S. President Barack Obama’s administration released its National Security Strategy (available here) May 27, focusing extensively on the threat from international and, for the first time, domestic terrorism (CNN, AJE, Washington Post). As part of the strategy’s rollout, senior White House counterterrorism advisor John Brennan spoke at the Center for Strategic and International Studies May 26, focusing specifically on the domestic terror threat (CNN, White House). Brennan defined the threat as coming from ill-trained "foot soldiers" attempting small-scale attacks against the United States. He noted that the new NSS does not view terrorism through the lens of the Bush-era "War of Ideas" and spoke strongly about the need to not regard American Muslim communities as potential threats, but instead to support them in preventing the radicalization of Muslim youth (WIND).

The NSS remains vague on the legal structures governing the treatment and prosecution of terrorists. In a section titled, "Strengthen the Power of Our Example," the document highlights the importance of prohibiting torture "without Exception or Equivocation," and protecting the rule of law and civil liberties. However, the same section also leaves open the possibility of creating new legal institutions for prosecuting terrorists, conducting terrorism-related trials in both military and civilian courts, and implementing procedures for legally-regulated detention without trial (page 36):

"The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted-but pose a danger to the American people-we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government."

Obama administration pushes back on closing Gitmo

The National Security Strategy reaffirms on page 22 the administration’s goal to close the prison at Guantánamo Bay. This step, the strategy argues, will "deny violent extremists one of their most potent recruitment tools" (NSS). In a bid to counteract Congressional efforts to keep the prison open, National Security Advisor Gen. James L. Jones wrote a letter May 27 to the chair and ranking member of the House Appropriations Committee describing the administration’s efforts to ensure that all prisoners repatriated from Gitmo are vetted and monitored, to ensure they do not return to militancy (Atlantic). In the letter, Gen. Jones also writes that two congressional proposals to block the closure of Guantánamo "are counter to the national-security interests of the United States" (Newsweek).

New York Times reporter Charlie Savage on May 25 described the uproar caused by a provision in the defense authorization bill currently before Congress that would order the Pentagon to investigate lawyers for Gitmo detainees if there was "reasonable suspicion" that they violated Pentagon policies, put members of the armed forces at risk, or "interfere" with the operations at Gitmo (NYT, ABC). State Department legal advisor Harold Koh this week defended administration lawyers who worked pro bono for detainees, saying, "They are heroes. They are among the finest lawyers I have ever known" (TAP).

The UN special rapporteur on extrajudicial, summary or arbitrary executions will issue a report June 3 arguing that the CIA should discontinue using armed drones in attacks, instead giving that responsibility to regular armed forces (AJE). Charlie Savage writes that State Department and Defense Department lawyers have worked for months to explain the legality of using CIA operatives, who do not wear uniforms like conventional soldiers, to operate the drones. At the same time, the administration is attempting to try Guantánamo detainees like Omar Khadr for murder in a war zone, based in part on the argument that the detainees did not follow the laws of war, for instance by not wearing uniforms (NYT).  He reports that a part of the newest version of the military commissions manual was edited to protect drone operators from possible prosecution in international or U.S. courts.

On May 26, a federal judge granted the habeas petition of Yemeni Gitmo detainee Mohammed Hassan, bringing to 36 the number of detainees who have successfully argued for their release (Miami Herald). And a new video from Al Qaeda in the Arabian Peninsula named Othman Ahmed al-Ghamdi, a former Gitmo detainee released in 2006, as one of its senior members (Reuters).

Court rules Bagram detainees do not have habeas rights

A U.S. appeals court panel ruled May 21 that detainees at Afghanistan’s Bagram Air Base do not have the right to appeal their incarceration, overruling a lower court decision and siding with the Obama and Bush administrations (LAT, Reuters, McClatchy). The three-judge panel ruled that, given Bagram’s location in an active war zone, as well as the fact that Afghanistan’s government holds sovereignty over Bagram, detainees there do not fall under the jurisdiction of U.S. courts (CNN).

Civil libertarians and others have expressed concern that this ruling will result in Bagram becoming a "second Guantánamo," where the United States can indefinitely detain terrorism suspects. However, Politico‘s Josh Gerstein notes that the Circuit Court opinion pointedly chose to rule on the status of current, not future, detainees sent to Bagram or another detention site in an active conflict zone in order to avoid judicial review (Politico). This leaves open the possibility, should the Obama administration choose to improperly send non-Afghan detainees to Bagram for detention, that a court could potentially grant those detainees habeas rights.

Trials and Tribulations

• In two must-read articles this week, Mark Mazzetti and Marc Ambinder separately detail a heretofore secret executive order allowing CENTCOM, under the command of Gen. David Petraeus, to conduct secret surveillance, intelligence-gathering, and direct action missions outside of conflict zones with little oversight (NYT, Atlantic).
• During a visit to Islamabad last week by CIA Director Leon Panetta and National Security Advisor Jones, U.S. officials reportedly provided Pakistan’s government with new evidence of Times Square bomber Faisal Shahzad’s links to the Tehrik-i-Taliban Pakistan (LAT, ET).
• A Mauritanian court May 25 sentenced three members of Al Qaeda in the Islamic Maghreb to death for their roles in the murder of four French tourists in 2007 (AP). Four others received lighter sentences, and two were acquitted.
• The inquest into the 7/7 London transportation bombings will investigate whether or not British intelligence agencies could have prevented the 2005 attacks (AP). It is still unclear if MI5 agents will be called to testify.
• Italy announced May 25 that it would take two as-yet undetermined prisoners from Gitmo; the Italian interior minister is examining a list of eligible detainees, which implies that the men may be allowed to resettle in Italy (Miami Herald).
• A Chilean appeals court ruled that a Pakistani student originally detained at the U.S. Embassy in Santiago for having traces of explosives on his person, and then freed after several days, must return to jail (Dawn).