National Security

Capture Or Kill? Lawyers Eye Options For Terrorists

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This is part 2 of a two-part report.

Given that United States would rather not be in the terrorist detention business, the Obama administration is thinking creatively about what to do with detainees.

The Obama administration expects to capture people overseas in the future, but no matter where the U.S. holds detainees, there are military, diplomatic, legal and political obstacles.

"The big question mark is, what is the Obama administration going to do with individuals who are captured in the future outside of combat zones like Afghanistan," says Matthew Waxman, who handled detainee affairs at the Pentagon under President Bush. Ever since President Obama took office, government lawyers have been debating that question.

With Guantanamo Bay prison set to close, Cuba is no longer under consideration. Bringing detainees to the United States presents political and legal obstacles, and Afghanistan's Bagram prison presents legal and diplomatic obstacles. That has led government lawyers to explore options that do not fit the traditional mold of American-run prisons.

"Having this agency hold dangerous figures overseas as was done before is not an option," says CIA spokesman Paul Gimigliano. "What the press came to call black sites are a thing of the past."


Although President Obama has ruled out CIA-run foreign prisons, he has said he will continue another detention practice used by the Bush administration: rendition.

In late August, President Obama's interrogation and transfer policy task force said the administration would continue sending terrorists to foreign countries as long as those governments promised not to torture detainees.

The Obama administration is "looking to other countries in the world, to their allies, to do more with respect to the long-term resolution of particular detention cases" than the Bush administration did, says Cardozo law professor Vijay Padmanabhan. Padmanabhan was an attorney adviser at the State Department in the Bush administration. "So we've seen in the Horn of Africa, Kenyans, for example, have been called upon to detain and prosecute people," Padmanabhan says.

Those agreements have to be worked out on a case-by-case basis, and they can be difficult.

"The international community doesn't accept the idea that individuals can be held without trial over a long period of time," says John Bellinger, who was legal adviser to the State Department under President Bush. "So it's unlikely that we'd be able to persuade other members of the international community, particularly those in Europe, to join in holding people for any significant period of time unless they were going to be tried."

Obama administration lawyers interviewed for this story, who are not authorized to speak on the record, agreed with that assessment.

...Or Kill?

Given the difficulty of detaining high-value terrorists in the United States, Cuba, Afghanistan, black sites or foreign countries, another possibility exists.

"To be perfectly blunt, I don't think that they'll pick them up at all," says Ken Anderson of the Hoover Institution and American University's Washington College of Law, who has written about these issues. "I think that we've actually allowed the courts to arrange the incentives to kill rather than capture."

Many national security experts interviewed for this story agree that it has become so hard for the U.S. to detain people that in many instances, the U.S. government is killing them instead.

Last month, American forces staged a raid on a car in Somalia. The man inside the car was a suspected terrorist on the FBI's most wanted list. American troops did not seize him. Instead, helicopters fired on the car, and commandos retrieved his body.

University of Michigan law professor Monica Hakimi worked at the State Department in the last administration. She does not like the idea of long-term detention. But, she says, none of the alternatives seem much better.

"The benefit of capturing them is that we might be able to get from them certain intelligence that we can use to hunt down future terrorists," says Hakimi. "The cost is that once we capture them it's not really clear what we're supposed to do with them."

President Obama created a task force to try to answer these questions. It was supposed to finish its work in July, but as the deadline approached, the team said it needed another six months to work through these problems.



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