By Susan Crabtree - 03/24/10 06:15 PM EDT
A decision by a federal judge this week to free a high-value terrorism suspect who was reportedly tortured by U.S. intelligence officers could complicate final Capitol Hill negotiations aimed at closing the Guantánamo Bay prison.
Key GOP critics of the administration’s detainee policies have pounced on a ruling by U.S. District Court Judge James Robertson that could lead to the release of Mohamedou Ould Slahi, a suspected al Qaeda organizer held at Guantánamo Bay who was once considered by Pentagon officials to be the “highest-value detainee at the facility.”
Rep. Lamar Smith (R-Texas) wrote Attorney General Eric Holder on Wednesday urging the Justice Department to appeal the ruling and requesting a full briefing and a copy of Robertson’s classified decision.
“It is certainly possible, if not likely, that Mr. Slahi will re-engage in efforts to commit terrorist attacks against innocent Americans if allowed to go free,” Smith said in a statement Wednesday. “This ruling clearly puts the American people in danger and should not be allowed to stand.”
Sen. Kit Bond (R-Mo.), the ranking member of the Intelligence Committee, used the Robertson decision as an opportunity to decry the Obama administration’s national security policies and efforts to close Guantánamo Bay.
“While Holder’s Justice Department should appeal this outrageous decision, I’m not holding my breath,” Bond said. “Holder seems more intent on closing Guantánamo Bay than keeping terrorists locked up where they belong.”
Robertson on Monday granted Slahi’s habeas petition, determining he was being held without just cause.
In many ways, Slahi’s case typifies problems the Obama administration inherited from its predecessor’s use of enhanced interrogation techniques on suspected terrorism suspects. Civilian and military courts cannot prosecute suspects if the use of torture was involved in attaining the evidence against them.
In Slahi’s case, the 9/11 Commission report accused the Mauritanian national of helping recruit members of the German al Qaeda cell that took part in the plotting and execution of the attacks. But the military prosecutor first assigned to the case refused to continue it and resigned after he found evidence that Slahi had been beaten and tortured psychologically, including the use of death threats and suggestions that his mother would be raped if he did not cooperate.
Robertson rules against the Department of Justice (DOJ), which has spent years arguing in court for Slahi’s continued detention.
“We’re reviewing the ruling and considering our options,” said DOJ spokesman Dean Boyd when asked whether the government would appeal.
President Barack Obama, who campaigned on the promise of closing the Guantánamo Bay prison, is in a deepening quandary. His pledge to close the facility is months past its original deadline, and White House Chief of Staff Rahm Emanuel has been negotiating with Sen. Lindsey Graham (R-S.C.) on a deal aimed at breaking the political impasse with Congress.
In order to reach a deal, the White House is considering endorsing a law that would allow the indefinite detention of some alleged terrorists without trial. Graham also would like to create an entirely new national security court system designed for the sole purpose of prosecuting difficult cases against detainees. Any effort to grant Graham’s wish list, however, would anger Obama’s liberal supporters in the human-rights community.
Daphne Eviatar, a senior associate with the law and security program at Human Rights First, said the Slahi case is being misinterpreted. Rather than demonstrating the uncertainty of relying on civilian courts to prosecute and make determinations about detainees, as Republicans argue, she said the case is the perfect example of the legal pitfalls of the George W. Bush administration’s use of enhanced interrogation techniques.
“Because torture was used, this guy cannot be tried anywhere,” she said, noting that military tribunals also do not accept evidence produced when enhanced interrogation techniques are involved.
Allowing indefinite detention or creating an entirely new court system to deal with terrorism suspects would be “unnecessary and dangerous,” she added.
Under the law of war, the administration already has the authority to hold certain detainees indefinitely if the government can show that they were caught overseas and were involved in waging a fight against the United States. Providing an entirely new layer of judicial review would most likely be unconstitutional and would be subject to years of court challenges.
“We would argue that you don’t need to have a new law laying out a new standard for detention,” Eviatar said. “That would cause years of additional delay as the courts determine exactly what the law is.”
In Slahi’s case, the Justice Department agrees with Republican critics about the danger he poses and the need to keep him in U.S. custody. But that hasn’t silenced GOP critics who argue that it demonstrates the dangers of leaving detainee decisions in the hands of civilian judges and courts.
In habeas cases, however, the Supreme Court in recent years has given the government no choice but to depend on civilian judges to hear such petitions.