Obama Administration Defends Stupid Counterterrorism Decisions, Again

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Only this time, those decisions were made by his own Administration:

The Department of Defense said Monday it acted correctly when it barred three journalists, including Miami Herald reporter Carol Rosenberg, from covering military hearings at Guantánamo Bay.

But it left open the door to reinstating the reporters.

David A. Schulz, the attorney representing Rosenberg and reporters from Canwest News Service and the Toronto Star, had asked for a reversal of the coverage ban. The exclusion also affects a fourth reporter from The Globe and Mail who appealed independently.

“It is my determination that officials of the Department were correct to take the actions they did against these three individuals,” Bryan G. Whitman, principal deputy assistant secretary of defense for public affairs, wrote Monday in a letter to Schulz.

The stupid counterterrorism decision, of course, was to ban four journalists–including one who wrote a book on Omar Khadr and another with by far the most expertise on Gitmo–because they published the name of Joshua Claus. The seem to think people are too dumb to discover this stuff on their own. And it appears they’d like to avoid admitting that a guy who was convicted in relation to the death of Dilawar also implicitly threatened rape and death with Khadr. As a result, one of those acts which would, if done correctly, win some credibility with those we’re trying to persuade, is instead made out to be a kangaroo court where reporters are asked to purge their mind of all relevant knowledge when they walk in the trial room.

[Hi there Wheelheads, bmaz here – I am about to board the plane and Marcy is already in the air. We are going to San Francisco to cover closing arguments in the Prop 8 Gay Marriage case. You all behave, and keep the joint tidy. If there is WiFi in the plane I will post from there. Otherwise hoop it up and don’t completely drain the liquor cabinet]

“Incentives for Cooperation”

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David Kris gave a speech at the Brookings Institute last week, largely intended to make the case for civilian trials. Here’s the main framework of the speech:

Today, however, the consensus that developed in the aftermath of 9/11 shows some signs of unraveling.  In particular, there are some who say that law enforcement can’t – or shouldn’t – be used for counterterrorism.  They appear to believe that we should treat all terrorists exclusively as targets for other parts of the Intelligence Community or the Defense Department.

The argument, as I understand it, is basically the following:

  1. We are at war.
  2. Our enemies in this war are not common criminals.
  3. Therefore we should fight them using military and intelligence methods, not law enforcement methods.

This is a simple and rhetorically powerful argument, and precisely for that reason it may be attractive.

In my view, however, and with all due respect, it is not correct.  And it will, if adopted, make us less safe.  Of course, it’s not that law enforcement is always the right tool for combating terrorism.  But it’s also not the case that it’s never the right tool.  The reality, I think, is that it’s sometimes the right tool.  And whether it’s the right tool in any given case depends on the specific facts of that case.

Here’s my version of the argument:

  1. We’re at war.  The President has said this many times, as has the Attorney General.
  2. In war you must try to win – no other goal is acceptable.
  3. To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.

We must, in other words, be relentlessly pragmatic and empirical.  We can’t afford to limit our options artificially, or yield to pre-conceived notions of suitability or “correctness.”  We have to look dispassionately at the facts, and then respond to those facts using whatever methods will best lead us to victory.

Put in more concrete terms, we should use the tool that’s designed best for the problem we face.  When the problem looks like a nail, we need to use a hammer.  But when it looks like a bolt, we need to use a wrench.  Hitting a bolt with a hammer makes a loud noise, and it can be satisfying in some visceral way, but it’s not effective and it’s not smart.  If we want to win, we can’t afford that.

If you take this idea seriously, it complicates strategic planning, because it requires a detailed understanding of our various counterterrorism tools.  If you’re a pragmatist, focused relentlessly on winning, you can’t make policy or operational decisions at 30,000 feet.  You have to come down, and get into the weeds, and understand the details of our counterterrorism tools at the operational level.

And that leads me to this question:  as compared to the viable alternatives, what is the value of law enforcement in this war?  Does it in fact help us win?  Or is it categorically the wrong tool for the job – at best a distraction, and at worst an affirmative impediment?

It really summarizes the Obama Administration’s embrace of man-ego-driven “pragmatism” and wonkiness in all things. The response to outright demagoguery (the “we are at war so we must torture and kill kill kill” perspective), the Obama Administration presents an alternative, purportedly pragmatic formulation that suffers from its own problems.

“We are at war either because of or as evidenced by the fact that the two big men keep saying we are.” Sure, Kris’ speechwriter might just have been trying to rebut the nutters who like to score points by claiming that Obama doesn’t agree with Dick Cheney that This Is War. But note what it does for this entire “pragmatic” argument: it presents the fact–“we are at war” with no examination of either the statement itself or the nuance covered up by it. It avoids questions like, “Against whom are we at war?” “Are we just at war against formal members of al Qaeda, or are we also at war against American losers who read Anwar al-Awlaki on the interToobz and go on to buy a GPS but never actually succeed at contacting anyone from al Qaeda?” “Why are we at war against some terrorism but not other terrorism and, at this point, are we even targeting the most effective and dangerous terrorists?” “What is the objective of this war?” “If we’ve embraced the concept of war, have we also embraced the legal concepts of war?” The Obama Administration has, like the Bush Administration, actually picked and chosen when it wants to claim to be at war and when that’s inconvenient; with a little more examination of the premise itself, we might be able to find a more reasonable way to resolve these inconsistencies. But “pragmatic” claim notwithstanding, this entire thought exercise starts by refusing to examine the foundational premise.

“We’re at war and so we must win!” Here’s where unexamined first principles, driven by man-ego, really introduce problems into this formula. Sure, if you’re at war, you want to win it (though it helps to define what winning looks like). But it assumes certain sorts of acts in its definition: “We must crush those Islamic extremists in our bare hands and eat them for breakfast!” (If you’re John Yoo, you must crush the testicles of Islamic extremists’ children…) Read more →

Dawn Johnsen: Finish the Job of Fixing Office of Legal Counsel

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Dawn Johnsen has a must-read op-ed today describing how the Bybee memo damaged the Office of Legal Counsel.

In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department’s Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination — withdrawn this spring — to head this office. While attention understandably is focused on confirming the president’s Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.

It is long past time to halt the damage caused by the “torture memo” by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.

There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo — and my profoundly negative reaction to it — was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.

While I agree with everything Johnsen says (go figure), I’m wondering, why now? Is she worried that Obama’s preparing to nominate someone who does think the Bybee memo is reasonable? There’s also this bit, at the end, which suggests she’s pushing for more transparency in OLC than there is now.

The example of the torture memo argues heavily for greater transparency so that lawmakers and the American people may better understand and respond to the actions of their government. Of course, public explanations must safeguard national security, including sources and methods. But the memo’s conclusion that the president’s constitutional authorities entitled him to override the federal torture law is a clear example of legal analysis the government should make public. That’s how democracies work.

[snip]

The OLC can be the last word on legal issues that may never get to court. In such cases, public scrutiny and debate provide the most effective check against unduly expansive theories of presidential power. The stability of the rule of law must not depend on leaks.

Granted, the torture memo did come out via a leak, so her comment is not totally out of context. But we have had a recent leak about OLC’s involvement in efforts to make our stance on Gitmo trials coincide with our stance on drones.

Is there something specific Johnsen is responding to?

Judge: One Night at a Zubaydah-Related Guest House Not Grounds for Indefinite Detention

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As McClatchy reported yesterday, Judge Henry Kennedy granted a the habeas petition of a Yemeni man, Mohamed Hassan Odaini, several weeks ago. That brings the total number of men held at Gitmo who have won habeas petitions to 36.

Kennedy’s ruling reveals not just his exasperation with the government’s arguments, but also the absurd lengths to which the government is going to try to keep some of these men at Gitmo. While much of the ruling remains classified, the government is effectively trying to argue that Odaini must remain at Gitmo because he spent one night at a guest house with alleged ties to Abu Zubaydah (that night happened to be the night the US raided the house and captured its inhabitants), and that one night is all the proof they need to argue that the of evidence showing he’s just a student must be a cover story to hide an affiliation with al Qaeda.

As Kennedy lays out in detail, 12 other Gitmo detainees discussed the safe house in ways that were consistent with Odaini’s own story, and eight of them specifically identified him as a student who had been at the house for just a day or so before the raid. At least six times–starting back in 2002–different people associated with his detention declared him to be appropriate for release. That includes a June 2009 notice from the Gitmo Task Force that he could be transferred (which is not necessarily release, mind you). Yet between a stay and the moratorium on the release of Yemeni detainees put in place after the Christmas bombing attempt, Odaini remains in custody.

But, the government still argues that Odaini’s detention is legal–based partly on the fact that he was at that guest house when they raided it.

Pursuant to an order the Court issued in advance of the merits hearing in this case, the parties identified the issues in dispute and structured their presentations to address each issue in turn during the hearing. Accordingly, respondents first argued that Odaini’s stay in Issa House supports the conclusion that he is lawfully detained and second that his version of events is so implausible as to further support denial of the writ of habeas corpus. Both arguments fail.

Respondents insist that Odaini’ s presence at lssa House demonstrates that he is part of the Al Qaeda-affiliated network of a man named Abu Zubaydah. They vehemently argue that the fact that the occupants of Issa House allowed Odaini to come inside demonstrates that he was, like them, part of this network.

Much of the discussion surrounding the government’s argument is redacted. But it’s clear that at least part of it–apparently, the government’s theory of guest houses–is based on dubious expertise. Following one passage that is redacted, Kennedy wrote,

Based on this statement, respondents argue that the Court should find that Odaini is part of Al Qaeda and therefore lawfully detained. The Court will not do so. It is standard practice to tell jurors evaluating expert testimony that if”they [find] that the opinion is not based on sufficient education or experience, … the reasons supporting the opinion are not sound, or … the opinion is outweighed by other evidence, [they may] completely or partially disregard the opinion.”

Which raises the question of whether the redactions serve to hide classified information–or the government’s own dubious claims about the culture of guest houses (one of the few other unredacted passages in this section refute the claims made in the redacted section about the security of guest houses).

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Obama and JSOC Targeting People Not Included under AUMF

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The WaPo has an important story today–apparently following up on the NYT’s JUnc-WTF story from last week–describing the way Obama has expanded the scope of the use of special operations forces. Some key details are:

  • Obama has deployed JSOC in 15 new countries since taking over as President, for a total of 75
  • JSOC has about 4,000 people in countries besides Iraq and Afghanistan
  • JSOC has 100 people in Pakistan but would like to triple that
  • Obama has changed the reporting structure in some good ways (reading Ambassadors into operations and reporting through regional commands) but has apparently increased direct conversations with JSOC (though remember that JSOC was supposed to be doing operations reporting directly to Cheney before)
  • JSOC is whining about needing civilian approval for targeting people in countries against which we are not at war, like Somalia and Yemen

But the most disturbing part of the story is something that parallels something in the Gitmo Review Task Force Report: Obama is claiming the right to target people not included under the Authorization to Use Military Force passed in response to 9/11.

Former Bush officials, still smarting from accusations that their administration overextended the president’s authority to conduct lethal activities around the world at will, have asked similar questions. “While they seem to be expanding their operations both in terms of extraterritoriality and aggressiveness, they are contracting the legal authority upon which those expanding actions are based,” said John B. Bellinger III, a senior legal adviser in both of Bush’s administrations.

The Obama administration has rejected the constitutional executive authority claimed by Bush and has based its lethal operations on the authority Congress gave the president in 2001 to use “all necessary and appropriate force against those nations, organizations, or persons” he determines “planned, authorized, committed, or aided” the Sept. 11 attacks.

Many of those currently being targeted, Bellinger said, “particularly in places outside Afghanistan,” had nothing to do with the 2001 attacks.

If Obama is purportedly relying on the AUMF to authorize JSOC missions, then his authority should be limited to those who “planned, authorized, committed, or aided” the 9/11 attacks. But, at least according to John Bellinger, these operations are targeting people who had nothing to do with the attacks–presumably, people whose ties to al Qaeda are so attenuated that they couldn’t be claimed to have had a role in 9/11.

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Task Force Conclusion: “Many” Detainees Were Legally Detained

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While I was away celebrating my 20th college reunion this weekend (thanks for filling in, bmaz), the WaPo liberated the Gitmo Review Task Force report. As the WaPo reported, the big takeaway is the government’s admission that over 55% of those reviewed by the Task Force were what it called “low level fighters” in al Qaeda, the Taliban, or “associated groups.” The claim itself is not all that credible–and that doesn’t include some of the 20% whom the Task Force described as having some organizational role in al Qaeda but might just mean they’re one of Osama bin Laden’s seemingly infinite number of bodyguards. Just 10% were the “worst of the worst” that Gitmo was supposed to hold (the report did not name Abu Zubaydah among those, for example).

All of which might explain why the report was so desperate to claim that detaining these men all these years–well, “many” of them, anyway–wasn’t illegal.

For many of the detainees approved for transfer, however, the review participants found there to be reliable evidence that the detainee had engaged in conduct providing a legal basis for his detention.

No word about the others who have been detained for up to 8 years for whom the Task Force found no legal basis to hold.

Similarly, the report implies that torture was not why the government cannot prosecute “most” of the 48 detainees it has slated for indefinite detention.

Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above.

It describes those jurisdictional limitations this way:

Second, many of the detainees cannot be prosecuted because of jurisdictional limitations. In many cases, even though the Task Force found evidence that a detainee was lawfully detainable as part of al-Qaida–e.g., based on information that he attended a training camp, or played some role in the hierarchy of the organization–the Task Force did not find evidence that the detainee participated in a specific terrorist plot. The lack of such evidence can pose obstacles to pursuing a prosecution in either federal court or a military commission. While the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization, e.g., by attending a terrorist training camp, there are potential limitations to pursuing such a charge against the detainees. 21

21 Among these limitations: First, the two relevant statutes–18 USC 2339A and 2339B–were not amended to expressly apply extraterrorially to non-US persons until October 2001 and December 2004, respectively. Thus, material support may not be available as a charge in the federal system unless there is sufficient evidence to prove that a detainee was supporting al-Qaida after October 2001 at the earliest. Second the statute of limitations for these offenses is typically eight years (see 18 USC 3286), which may bar prosecution for offenses that occurred well before the detainee’s capture. Third, because the statutory maximum for material support is 15 years (where death does not result from the offense), sentencing considerations may weigh against pursuing prosecution in certain cases. Some of these considerations would not apply to material support charges brought in the military commissions; however, the legal viability of material support charges brought in the military commission system has been challenged on appeal in commission proceedings.

Let’s take a moment to lay out what these passages all suggest, but don’t admit candidly:

  • “Concerns” about tainted evidence explained why at least “some” of these people cannot be prosecuted. I take that as a shorthand admission that these men–or their accusers–were abused in US custody. And the solution, apparently, is to just keep them in custody. The report doesn’t say how the government can trust the evidence itself if it is tainted. I guess they just know.
  • For a significant number of the 48 men slated for indefinite detention, there is no evidence that the man participated in terrorism. Indeed, given the description, it appears there isn’t even any evidence the man took part in an attack on American troops (even granting the government claim that all such attacks were necessarily illegal and not self-defense, which is itself bogus). And given the timing implied by the October 2001 deadline, there’s not even any evidence these men continued their affiliation with Al Qaeda after 9/11 made it clear the organization was attacking US civilians. In short, a significant number of these 48 men are just like the mujahadeen the US used to fund in the glorious Reagan days. But in the glorious post-9/11 days, such actions qualify a man for indefinite detention.
  • Read more →

Squabble in Administration over Rule of War, Khadr, Drones

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Steven Edwards, one of the four journalists banned from Gitmo for reporting publicly available information, has an important story on squabbles within the Obama Administration about what should be in the recently updated Gitmo military tribunal manual. At issue is whether actions like Khadr’s alleged crime–throwing a grenade during active warfare–should be included.

The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say.

Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate.

In a turf battle familiar from the Bush Administration, the dispute pits State–Harold Koh–against DOD–General Counsel Jeh Johnson.

U.S. Defence Secretary Robert Gates signed off on the manual with the contested “comment” intact after Jeh Johnson, his legal adviser, went head-to-head with Koh, one official recounted.

“Harold Koh doesn’t have any authority over the defence department,” said this official. “The general counsel of DOD was fighting Koh on it; he advises Secretary Gates . . . who is going to follow his own lawyer.”

Of particular interest, Koh appears to have shared the concerns laid out here–that if we treated Khadr’s alleged attack as a war crimes violation, it would put our own use of drones in the same category (though I imagine it is in that category in any case).

Along with Koh, two OLC attorneys opposed the inclusion of murder in the manual. From the sounds of things, others in the Obama Administration overrode these two OLC attorneys. Which I guess is a lot easier to do when there’s no Assistant Attorney General at OLC to champion such battles. One more benefit to the unilateralists of scotching Dawn Johnsen’s nomination, I guess. But it does raise questions about whether OLC under Obama has gotten even more politicized than under Bush?

One more note before I send you off to read the whole thing. This article doesn’t mention Daniel Meltzer, the Deputy White House Counsel who resigned earlier this month to spend more time with his law students. But the timing of it would certainly line up.

Updated: Corrected reference to specific OLC lawyers–my post went beyond what Edwards wrote in his story.

DC Circuit Helps Obama Turn Bagram into Black Hole

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The DC Circuit just overturned a District Court opinion that granted three Bagram detainees who were captured outside of Afghanistan (though the government contests this claim for one of the detainees) the right to a habeas proceeding.

It based its argument on three factors the Supreme Court listed in deciding in Boumediene that detainees at Gitmo did have the right to habeas proceedings.

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

The Circuit found that the three detainees had actually had a less adequate status determination than the detainees in Boumediene. But it said it had to consider the two other named factors. It found that the US has nowhere near the sovereignty over Bagram that it has in Gitmo.

As the Supreme Court set forth, Guantanamo Bay is “a territory that, while technically not part of the United States, is under the complete and total control of our Government.” 128 S. Ct. at 2262. While it is true that the United States holds a leasehold interest in Bagram, and held a leasehold interest in Guantanamo, the surrounding circumstances are hardly the same. The United States has maintained its total control of Guantanamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property. In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the “host” country. Therefore, the notion that de facto sovereignty extends to Bagram is no more real than would have been the same claim with respect to Landsberg in the Eisentrager case. While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with respect to Bagram.

[snip]

The Supreme Court expressly stated in Boumediene that at Guantanamo, “[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.”

And the Circuit placed even more weight on the impracticality of giving detainees at Bagram habeas proceedings.

Afghanistan remains a theater of active military combat. The United States and coalition forces conduct “an ongoing military campaign against al Qaeda, the Taliban regime, and their affiliates and supporters in Afghanistan.” These operations are conducted in part from Bagram Airfield. Bagram has been subject to repeated attacks from the Taliban and al Qaeda, including a March 2009 suicide bombing striking the gates of the facility, and Taliban rocket attacks in June of 2009 resulting in death and injury to United States service members and other personnel.

[snip]

But we hold that the third factor, that is “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ,” particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war.

And on that basis–effectively the fact that the Administration chooses to bring men into a theater of war to detain them–the Circuit overturned the District decision.

We cannot, consistent with Eisentrager as elucidated by Boumediene, hold that the right to the writ of habeas corpus and the constitutional protections of the Suspension Clause extend to Bagram detention facility in Afghanistan, and we therefore must reverse the decision of the district court denying the motion of the United States to dismiss the petitions.

Now, as the detainees argued, this basically means that the US can avoid any legal obligation to give detainees some kind of legal review by keeping detainees at Bagram or, possibly, taking them there, into a theater of war, so as to deprive them of a right to habeas. Read more →

Once Again, Obama Empowers State Department to Lecture Others

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Almost a year ago, Obama celebrated the anniversary of the Convention against Torture by promising to have the Department of State look at other countries’ use of torture.

My administration is committed to taking concrete actions against torture and to address the needs of its victims. On my third day in office, I issued an executive order that prohibits torture by the United States. My budget request for fiscal year 2010 includes continued support for international and domestic groups working to rehabilitate torture victims.

The United States will continue to cooperate with governments and civil society organizations throughout the international community in the fight to end torture. To this end, I have requested today that the Department of State solicit information from all of our diplomatic missions around the world about effective policies and programs for stopping torture and assisting its victims so that we and our civil society partners can learn from what others have done. I applaud the courage, compassion and commitment of the many people and organizations doing this vitally important work. [my emphasis]

And while the specific requirements of the Daniel Pearl Freedom of the Press Act mandate action from the Department of State, it still feels pretty hollow when, less than two weeks after DOD banned four reporters from Gitmo for printing information that’s in the public domain, Obama is again directing the State Department to lecture others about issues the US has problems with itself.

Here’s what transpired when Obama signed the Act:

THE PRESIDENT:  Well, hello, everybody.  I am very proud to be able to sign the Daniel Pearl Freedom of the Press Act, a piece of legislation that sends a strong signal about our core values when it comes to the freedom of the press.All around the world there are enormously courageous journalists and bloggers who, at great risk to themselves, are trying to shine a light on the critical issues that the people of their country face; who are the frontlines against tyranny and oppression.  And obviously the loss of Daniel Pearl was one of those moments that captured the world’s imagination because it reminded us of how valuable a free press is, and it reminded us that there are those who would go to any length in order to silence journalists around the world.

What this act does is it sends a strong message from the United States government and from the State Department that we are paying attention to how other governments are operating when it comes to the press.  It has the State Department each year chronicling how press freedom is operating as one component of our human rights assessment, but it also looks at countries that are — governments that are specifically condoning or facilitating this kind of press repression, singles them out and subjects them to the gaze of world opinion in ways that I think are extraordinarily important.

Oftentimes without this kind of attention, countries and governments feel that they can operate against the press with impunity.  And we want to send a message that they can’t.

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Search and Replace: Sexually Dangerous Person, Terrorist

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Just as a little thought experiment, let’s look how some passages from SCOTUS nominee Elena Kagan’s successful argument in U.S. v. Comstock–in which SCOTUS just voted 7-2 to affirm the federal government’s authority to indefinitely detain sex offenders who are mentally ill–appear when we replace the term “sexually dangerous person” with “terrorist.” (See Adam B’s post on the decision for a good overview of the decision.)

KAGAN: The Federal Government has mentally ill, sexually dangerous persons [terrorists] in its custody. It knows that those persons, if released, will commit serious sexual [terrorist] offenses;

[snip]

JUSTICE GINSBURG: But the likelihood is that the person will stay in Federal custody?

GENERAL KAGAN: I think that that’s fair, that the likelihood is that the person will stay in Federal custody until such time as a court finds that the reasons for that custody have lapsed.

[snip]

CHIEF JUSTICE ROBERTS: Right. I understand your argument to be that this power is necessary and proper, given the fact that the person is in Federal custody for some other reason, criminal conviction [enemy combatant designation].

GENERAL KAGAN: That has been the government’s case throughout this litigation, that it is always depended on the fact of Federal custody, on the fact that this person has entered the criminal justice system [been designated an enemy combatant],

[snip]

CHIEF JUSTICE ROBERTS: Well, why doesn’t the Federal Government’s authority to have custody because of the criminal justice system [enemy combatant designation] end when the criminal justice system is exhausted if he can’t be charged? In other words, when the sentence is done?

GENERAL KAGAN: Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly, and is done in such a way —

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