US Indefinite Detention – Sri Lanka PTA and Robert Blake

The United States intensified its diplomatic pressure in the last decade or so, and Robert Blake, as American ambassador to Sri Lanka (07-09) and now as assistance secretary of state for South/Central Asian Affairs, talked (and presently talks) of the virtues of removing the 1979-enacted Prevention of Terrorism Act (PTA).

To Mr. Blake and to his state department, the PTA is a draconian piece of legislation; however it was targeted to counter terrorism in Sri Lanka, which erodes universally-accepted human rights.

It is the same United States which endeavors to erase the PTA from Sri Lanka’s statute book is presently on the verge of enacting the most draconian law, in the name of combating terrorism, to indefinitely detain American citizens, resident aliens and others under military custody.

The then American ambassador Robert Blake in his state-controlled TV network Rupavahini interview in early December 2006 and carried in full by state-controlled Daily News on 5 December, opined for what purpose the 2001 USA Patriot Act as opposed to Sri Lanka’s PTA is being used, and the difference of two constituencies in which the two laws are operating.

Asked as to why Sri Lanka should not defend itself in pursuing terrorists when the United States is pursuing terrorists under the USA Patriot Act, Mr. Blake gave a signal to Sri Lankan administration saying “I think it is dangerous to make comparisons between one country and the next. Every single country is different. In our case, the terrorists that we are pursuing are mostly stateless organizations like Al Qaeda that are not based in any single country” clearly indicating that his country is faced with global terrorism that has no territory and that Sri Lanka’s terrorists are ‘non state players’ domiciled in the country.

So to Mr. Blake, LTTE terrorists Sri Lanka are facing are no match to the terrorists the US is facing; grade one and grade two types.

It is this belief that Mr. Blake and his state department were advocating the removal of the PTA.

Justifying the operation of USA Patriot Act and advocating the removal of the PTA Robert Blake in this 2006 Rupavahini interview said that LTTE terrorism was not an issue in the Asian region and that it is confined to Sri Lanka involving the 12.5% ethnic Tamil minority: "I think the LTTE has been very careful about confining their operations to Sri Lanka because they are aware of the fact that if they should do so they do not want to antagonize particular neighbors like India. So they have been very careful and I think they have realized that one of the greatest strategical mistakes they made in their history was targeting Rajiv Gandhi."

To the question whether the 2001 USA Patriot Act helped the United States, Blake answering in the affirmative gave a valuable hint: "But, at the same time, there has been a very strong realization that there has to be a strong respect for civil liberties in America. I think there has been a good, healthy debate about that in the US…"

The core issue for the United States during the period the PTA was in operation was civil liberties, human rights and the rights of the ethnic Tamil minority which is caught in the middle of Sri Lanka’s national question.

The State Department Country Report on Human Rights Practices on Sri Lanka for the year 2000 carried the following observation:

"Large-scale arrests of Tamils continued during the year; these arrests were particularly prevalent after LTTE bombings, when many young Tamils were detained or arrested on suspicion of being LTTE cadres or sympathizers. The Government detained more than 2,819 persons under the ER and PTA from January to August 31, a higher number than that for all of 1999. Many detentions occurred during operations against the LTTE. Most detentions lasted several days to several months. The number of prisoners held at any given moment under the ER and the PTA consistently remained close to 2,000. Hundreds of Tamils indicted under the PTA remained without bail awaiting trial, some for more than 2 years. The high courts held hearings on 1,000 cases under the PTA or ER during the year.”

Country Report on Human Rights Practices on Sri Lanka for the year 2001 made these observations:

"Large-scale arrests of Tamils continued during the year. Many detentions occurred during operations against the LTTE. Most detentions lasted a maximum of several days although some extended to several months. The number of prisoners held at any given moment under the ER and the PTA fluctuated between 1,500 and 2,000.”

The U.S. Department of State commenced, since 2003, the preparation of a separate report to the Congress titled ‘Supporting Human Rights and Democracy: The US Record’. In its 2002-2003 report, released on 24 June 2004, stated in its Sri Lanka section: "The Government’s arbitrary arrests of Tamils has been a serious human rights problem. During the year, the U.S. supported projects to address the Prevention of Terrorism Act (PTA) and to insure that no new arrests under the PTA occurred."

One could comprehend how much the United States was concerned about the use of the PTA, the application of its provisions which the official U.S. government documents described as the violation of human rights of a particular ethnic group in Sri Lanka singled out by the U.S. as the Tamil minority.

This scenario was strongly imbedded in the mind of American ambassador Robert O. Blake when he told the state TV interviewer that he would not prescribe USA Patriot Act type laws as "civil liberties, frankly, are already under strain here."

Assistant Secretary Robert Blake at a media briefing at the American Embassy in Colombo during his Sri Lanka visit on 14 Sep (2011) raised the PTA issue again:

Question: This question is on the human rights situation in Sri Lanka. Did the new introduction of legislation about excessive detention and the proposal for 48 hours without charge, did that come up in conversation with the President? And how is the U.S. looking at how [inaudible] coming in to fill that gap?

Assistant Secretary Blake: I did talk with senior government officials about the emergency laws. As you know, the United States welcomed the lifting of the emergency laws, but at the same time many experts inside Sri Lanka say that that had little practical effect, and that because of the continuation of the Prevention of Terrorism Act and the Public Security Ordinance, many of the authorities are still present for a lot of the exceptional security actions that are still permitted.

So I think over time it’s important for Sri Lanka to reduce the scope of those measures as they make a judgment about the reduction in the threats to Sri Lanka. I think in a general way the government is committed to that. But certainly further work needs to be done. (End Transcript)

It is with this background of bringing diplomatic pressure by Mr. Blake, once as the ambassador and subsequently as assistant secretary, and for decades by the state department to remove the PTA which the successive Sri Lanka governments used to combat LTTE terrorism we highlight the most draconian law – indefinite detention – the United States is about to enact, already ratified by the two chambers of the US Congress and now on its way to the White House for President Obama to sign it to law, which is contrary to internationally-accepted human rights practices.

The indefinite detention law in the U.S. is no match to Sri Lanka’s PTA. It was parliamentarian Sajin Vaas Gunawardene who briefly raised the issue in Sri Lanka’s parliament recently, and here’s more information about this draconian law for the Sri Lankan officials to use when Mr. Blake or any other American official in the State Department raise the issue of human rights in connection with the PTA.

The bill codifies indefinite detention

Section 1021 of the National Defense Authorization Act (NDAA) governs, as its title says, “Authority of the Armed Forces to Detain Covered Persons Pursuant to the 2001 Authorization to Use Military Force (AUMF).” The first provision — section (a) — explicitly “affirms that the authority of the President” under AUMF “includes the authority for the Armed Forces of the United States to detain covered persons.” The next section, (b), defines “covered persons” — i.e., those who can be detained by the U.S. military — as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” With regard to those “covered individuals,” this is the power vested in the President by the next section, (c):

Disposition Under Law of War. – The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

This bill codifies the power of indefinite detention. It expressly empowers the President — with regard to anyone accused of the acts in section (b) – to detain them “without trial until the end of the hostilities.” That is the very definition of “indefinite detention,” and the statute could not be clearer that it vests this power.

Both the Bush and Obama administrations have argued that the 2001 AUMF implicitly (i.e., silently) already vests the power of indefinite detention in the President, and post-9/11 deferential courts have largely accepted that view (just as the Bush Justice Department argued that the 2001 AUMF implicitly (i.e., silently) allowed them to eavesdrop on Americans without the warrants required by law). That’s why the NDAA can state that nothing is intended to expand the 2001 AUMF while achieving exactly that: because the Executive and judicial interpretation being given to the 2001 AUMF is already so much broader than its language provides.

But this is the first time this power of indefinite detention is being expressly codified by statute (there’s not a word about detention powers in the 2001 AUMF).

The bill expands the scope of the War on Terror as defined by the 2001 AUMF

The scope of the war as defined by the original 2001 AUMF was, at least relative to this new bill, quite specific and narrow. Here’s the full extent of the power the original AUMF granted:

(a) In General- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Under the clear language of the 2001 AUMF, the President’s authorization to use force was explicitly confined to those who (a) helped perpetrate the 9/11 attacks or (b) harbored the perpetrators. That’s it. Now examine at how much broader the current Indefinite Detention clause in the NDAA is with regard to who can be targeted:

Covered Persons.—A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

Section (1) is basically a re-statement of the 2001 AUMF. But Section (2) is a brand new addition. It allows the President to target not only those who helped perpetrate the 9/11 attacks or those who harbored them, but also: anyone who “substantially supports” such groups and/or “associated forces.”

Critics say that this is a substantial statutory escalation of the War on Terror and the President’s powers under it, and it occurs more than ten years after 9/11, with Osama bin Laden dead, and with the U.S. Government boasting that virtually all Al Qaeda leaders have been eliminated and the original organization (the one accused of perpetrating 9/11 attack) rendered inoperable.

Glenn Greenwald, a noted columnist whose interpretations are widely read, says “It is true that both the Bush and Obama administration have long been arguing that the original AUMF should be broadly “interpreted” so as to authorize force against this much larger scope of individuals, despite the complete absence of such language in that original AUMF. That’s how the Obama administration justifies its ongoing bombing of Yemen and Somalia and its killing of people based on the claim that they support groups that did not even exist at the time of 9/11 – i.e., they argue: these new post-9/11 groups we’re targeting are “associated forces” of Al Qaeda and the individuals we’re killing “substantially support” those groups. But this is the first time that Congress has codified that wildly expanded definition of the Enemy in the War on Terror. And all anyone has to do to see that is compare the old AUMF with the new one in the NDAA.”

U.S. citizens are targeted in this new bill

Columnist Glenn Greenwald argues: There are two separate indefinite military detention provisions in this bill. The first, Section 1021, authorizes indefinite detention for the broad definition of “covered persons” discussed above in the prior point. And that section does provide that “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” So that section contains a disclaimer regarding an intention to expand detention powers for U.S. citizens, but does so only for the powers vested by that specific section. More important, the exclusion a ppears to extend only to U.S. citizens “captured or arrested in theUnited States” — meaning that the powers of indefinite detention vested by that section apply to U.S. citizens captured anywhere abroad (there is some grammatical vagueness on this point, but at the very least, there is a viable argument that the detention power in this section applies to U.S. citizens captured abroad).

But the next section, Section 1022, is a different story. That section specifically deals with a smaller category of people than the broad group covered by 1021: namely, anyone whom the President determines is “a member of, or part of, al-Qaeda or an associated force” and “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” For those persons, section (a) not only authorizes, but requires (absent a Presidential waiver), that they be held “in military custody pending disposition under the law of war.” The section title is “Military Custody for Foreign Al Qaeda Terrorists,” but the definition of who it covers does not exclude U.S. citizens or include any requirement of foreignness.

That section — 1022 — does not contain the broad disclaimer regarding U.S. citizens that 1021 contains. Instead, it simply says that the requirement of military detention does not apply to U.S. citizens, but it does not exclude U.S. citizens from the authority, the option, to hold them in military custody.

This is what the Indefinite Detention law states:

Applicability To United States Citizens And Lawful Resident Aliens .—

(1) United States Citizens .—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

Lawful Resident Aliens.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

The only provision from which U.S. citizens are exempted here is the “requirement” of military detention. For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optional. This section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention.

In sum, there is simply no question that this bill codifies indefinite detention without trial. There is no question that it significantly expands the statutory definitions of the War on Terror and those who can be targeted as part of it, columnist Greenwald summarizes.

Does Robert Blake still endeavor to ‘lecture’ Sri Lanka on the issue of PTA which has no comparison whatsoever to the US Indefinite Detention clause which is almost hidden in the 600-page National Defense Authorization Bill of 2012 now on its way to the White House for President Obama’s signature.

- Asian Tribune -