The Obama Administration is tying itself in knots over what to do with prisoners if it is to keep its election promise and closes the notorious Guantanamo Bay. The Congress is uncooperative, refusing yesterday to vote for funds to close the prison, and this week the courts got into the act by ruling that just because someone supported a terrorist organisation is not a sufficient reason to detain them.

Judge John Bates of US District Court hearing a challenge by six Guantanamo Bay detainees to the lawfulness of their detention has ruled that the Obama Administration’s proposal that the President be allowed to detain individuals who “substantially supported” the Taliban or al Qaida forces could be lawfully held by the US.

Bates ruled on Tuesday:

the Court rejects the concept of “substantial support” as an independent basis for detention. Likewise, the Court finds that “directly support[ing] hostilities” is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of “support” as a valid ground for detention. Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not warranted by domestic law or the law of war.

The only people that Obama can detain lawfully says Bates are those who the “President determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001,” and those “who are or were part of Taliban or al-Qaida forces … that are engaged in hostilities against the United States.”

This decision provides another headache for the embattled Obama. Possibly up to a quarter of the remaining Guantanamo Bay detainees, as well as a large number of those being held indefinitely in Afghanistan, will fall into the category of being supporters of the Taliban or al-Qaida. On this ruling they must either be tried or released immediately.

There is also an interesting sidebar commentary that can be made about Judge Bates’ reasoning. He clearly believes that there is a substantive difference between those who merely barrack for terrorist organizations and those who participate by joining, or in some other way substantially assisting, hostile acts. But governments around the world, including the Australian and British governments, have tended through their legislative initiatives and arguments to the courts, to lump everyone in together.

Community and religious leaders who have supported the actions of the Taliban or Al-Qaida have been targeted by law enforcement authorities, as have others in the community who have merely given oral or written support. There is power under the law to detain people suspected of committing such offences, without charging them. The idea of detaining anyone without charge is odious, but if the only basis is alleged support of terrorism, then it seems utterly without any foundation given what Judge Bates had said.

Peter Fray

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