Published in partnership with Shadowproof.

President Barack Obama’s administration will come to an end next month, but the administration will pass on a legal regime that enables President-elect Donald Trump to indefinitely hold alleged terrorism suspects in military detention away from any battlefield.

The administration embraced the concept of “preventive detention,” and in 2012, the authority for indefinite military detention without charge or trial was codified in the 2012 National Defense Authorization Act (NDAA).

Obama’s administration also designated a class of prisoners at the Guantanamo Bay military prison as individuals, who were too dangerous to release even though the government lacks evidence to charge them with a crime. Plus, Guantanamo prison remains open, despite the fact that the administration released dozens of prisoners over the past seven years.

On December 5, a report [PDF] was released summarizing the “legal and policy frameworks” the administration relied upon in pursuing war. The second half of the report particularly focuses on “targeting efforts,” which include policies involving the capture and detention of terrorism suspects.

Under the guise of transparency, the Obama administration’s report presents policies as constrained and legal in order to guard against concerns that the administration will bear some responsibility when Trump abuses this executive power. However, the administration had an opportunity to completely do away with an indefinite detention regime setup by President George W. Bush’s administration, and instead, the Obama administration incorporated the regime into its counterterrorism policy.

Officials further entrenched indefinite detention in government. They claimed the power to engage in targeted assassinations against alleged terrorism suspects placed on kill lists. They moved away from capturing and torturing detainees in secret CIA prisons and military detention facilities and instead employed lethal force to “counter terrorism.”

 

Killing Alleged Terrorism Suspects Who Could Have Been Captured

The “legal and policy frameworks” report asserts the administration followed “presidential policy guidelines” that prioritize “capture operations over lethal action.” Drone or airstrikes are to be taken to “prevent terrorist attacks against U.S. persons only when capture of an individual is not feasible and no other reasonable alternatives exist to address the threat effectively.” It later states “lethal force” is no substitute for “prosecuting a terrorist suspect in a civilian court or a military commission.”

Yet, according to the Office of Director for National Intelligence (ODNI) [PDF], U.S. counterterrorism strikes outside areas, where the U.S. has declared war, killed 2372-2581 “combatants” from January 20, 2009, to December 31, 2015. That means in at least 2372 cases—over the past six to seven years—the Obama administration could not “feasibly capture” alleged terrorism suspects.

On average, the Obama administration killed over 300 alleged terrorism suspects each year because officials could not “feasibly capture” them.

There apparently is no widely cited figure for how many terrorism suspects were captured by the Obama administration, but by and large, the Obama administration rarely found it “feasible” to capture terrorism suspects.

A Human Rights Watch (HRW) report [PDF] from 2013 highlighted multiple cases where alleged al Qaida in the Arabian Peninsula (AQAP) leaders, who could have been captured, were killed. In Wessab on April 17, 2013, suspected local AQAP leader, Hamid al Radmi, was killed by two drones that launched “at least three Hellfire missiles” at a car. His driver and two bodyguards were killed. Radmi regularly met with security and political officials.

Lt. Col. Adnan al Qadhi, who was an “officer in an elite Yemeni army unit” and a suspected local AQAP leader, was killed in Beit al Ahmar along with a bodyguard on November 7, 2012. “In April 2013, AQAP issued a video in which an 8 year-old boy, held with his father, a soldier, ‘confessed’ that military officers instructed him to plant a tracking device on al Qadhi,” according to the report.

As noted in “The Drone Papers” series published by The Intercept, Bilal el Berjawi was a British citizen stripped of his citizenship. British and U.S. intelligence tracked Berjawi with surveillance for “several years as he traveled back and forth between the U.K. and East Africa.” However, Berjawi was not captured. U.S. forces launched a drone strike and assassinated him in Somalia in 2012.

Nasser al-Awlaki, the father of Anwar al-Awlaki, insisted the U.S. government could have had the Yemeni government capture his son after he was killed in a drone strike in September 2011. Anwar was previously detained by Yemeni authorities.

In rare instances where the Obama administration chose to pursue capture over a kill operation, FBI agents and other forces involved often violated a country’s sovereignty. For example, the capture of Benghazi suspect Abu Khattala in Libya was apparently carried out under “law enforcement authority.” Libya did not consent to the operation. To the extent that the administration emphasizes the lawfulness of its actions, it was likely a violation of international law.

The Bush administration employed rendition and brought 779 men to the Guantanamo Bay prison. The world was told the men were the worst of the worst, but Bush released more than two-thirds of prisoners before Obama took office because they were innocent.Similar to President George W. Bush’s administration, the Obama administration relied upon a fairly elastic definition for what it means to be a “part of” al Qaida. It championed a criteria supported by the District of Columbia Circuit Court during habeas cases, where the actions or pattern of behavior of an individual fuels the determination of whether detention is lawful. Officials did not find it necessary to have evidence an individual operates within al Qaida’s “command structure” to show they are “part of” the organization and could be legally detained.

Obama launched a Guantanamo Bay review task force during his first month in office. Composed of representatives of U.S. military and security agencies, 126 of the remaining 240 captives were cleared for release. Forty-four captives were referred for prosecution, and 36 captives remained subjects of “active cases or investigations.”

Forty-eight captives were designated as “too dangerous to transfer but not feasible for prosecution.” They were sometimes referred to in the press as “forever prisoners.” Thirty captives were designated for “conditional” detention because they were from Yemen.

The Center for Constitutional Rights (CCR) represented Yemeni captives. CCR staff attorney Pardiss Kebriaei contended a fundamental problem was how the Obama administration maintained the flawed premise that everyone at Guantanamo was involved in some way with al Qaida or terrorism when so many of the men never participated in any fighting. There was no reasonable fear that they would “return to the battlefield.”

Multiple captives brought cases in U.S. courts in an attempt to force the government to release them. According to the American Civil Liberties Union (ACLU), Hassan al Odaini was 17 years old when he was arrested and detained without charge. He was arrested in a “surprise raid of a classmate’s home” by Pakistani officials. A federal court ordered his release and revealed the government repeatedly concluded Odaini posed no threat. Still, the Obama administration fought his release.

The ACLU argued the case refuted the claim that the administration indefinitely detained only those “who pose a clear danger to the American people.” They also maintained the review task force had failed in its work to release all innocent captives at Guantanamo Bay.

 

Denying Access To Courts For Detainees Held Indefinitely At Bagram

Obama administration officials detained dozens of captives at Bagram Air Base in Afghanistan and argued in court they could be held in detention without any judicial review, even though a district court judge determined they were entitled to the same habeas corpus review as Guantanamo Bay captives.

As of March 2013, the U.S. still held over 60 non-Afghan captives. Most of these individuals were Pakistanis, and some were cleared for release in 2010. But the Obama administration kept them in detention.

Justice Project Pakistan highlighted the experiences of captives and their families in a 2013 report [PDF] and summarized:

…[D]etainees’ families know little about their condition and nothing about their eventual fate. For years, families have been waiting for news, their lives also in limbo. They endure emotional, economic, and social burdens from the long absence of their loved ones, all worsened by the restrictions the U.S. military imposes on communication. Sons grow up never knowing their fathers. Mothers die without ever again seeing their sons. Wives strive to keep hope that their husbands will someday return. Neither the United States nor Pakistan provides families with any direct information regarding their relatives’ legal status or the conditions under which they could ever be released. Families blame the Pakistani government for failing to provide them with urgently needed assistance and basic information—and for failing to defend the rights of their citizens in U.S. detention. Families also denounce the United States as hypocritical, questioning why it continues to detain their relatives in indefinite detention without charge or trial, while proclaiming to champion human rights and the rule of law…

In July, dozens of Pakistanis still in U.S. military custody were released. Hamidullah Khan was one of the men released.

Afghan forces captured Khan when he was 14 years old. He was handed over to the U.S. military and put in a cage, where he was detained for five years. He told Al Jazeera, “Bagram was a hell for us and we could not forget what happen[ed] to us there,” and, “Now I suffer.”

 

Outsourcing Detention to Proxy Forces

While the Obama administration shut down secret CIA prisons, it chose to outsource detention to proxy forces in order to make it harder to pin allegations of brutality on the administration.

Journalist Jeremy Scahill also uncovered a CIA secret prison buried in the basement of Somalia’s National Security Agency headquarters. Prisoners in the facility included individuals “snatched off the streets of Kenya and rendered by plane to Mogadishu.”

Obama and other administration officials repeatedly gave speeches emphasizing a turn away from the Bush years. They emphasized a reliance on human rights and a rule of law and the fact that neither had to be sacrificed when fighting terrorism. Yet, the record does not match the rhetoric.

The Obama administration even went so far as to consider transferring “forever prisoners” at Guantanamo to a prison in Illinois. It contemplated moving them to other U.S. prison facilities when that failed. Only because Republicans objected to detaining “terrorists” on U.S. soil (a ludicrous objection) did the administration fail to further entrench the policy of indefinite detention through this action.

Guantanamo Bay military prison is not closed. It can still be used by President Donald Trump, and his administration may revamp its use in the War on Terrorism. Or he may stick to the tradition established by the Obama administration of killing instead of capturing terrorism suspects.

This is the third in a five-part series on the warfare and “national security” operations of the Obama administration. The first part examined the human cost of eight years of war under Obama. The second part examined the administration’s institutionalization of an assassination complex. In the next part, the administration’s policies on torture and interrogation will be examined ahead of a Trump presidency.