Showing posts with label civil rights. Show all posts
Showing posts with label civil rights. Show all posts

Feb 28, 2010

Civil rights-era killings yield secrets to FBI probe

By Carrie Johnson
Sunday, February 28, 2010; A01

Three years after the FBI pledged to investigate more than 100 unsolved civil rights killings, the agency is ready to close all but a handful. Investigators say they have solved most of the mysteries behind the cases, but few will result in indictments, given the passage of decades, the deaths of prime suspects and the challenge of gathering evidence.

"There's maybe five to seven cases where we don't know who did it," said FBI Special Agent Cynthia Deitle, who is heading the bureau's effort. "Some we know; others we know but can't prove. For every other case, we got it."

Even without taking cases to court, the project has filled in broad gaps in the stories of the murdered, many of whom were forgotten victims from a brutal chapter of American history.

Officials now believe, for example, that an Alabama state trooper killed an unarmed civil rights protester in 1965, a case that helped inspire the Rev. Martin Luther King Jr. to march in the state. In the deaths of two North Carolina men in police custody -- one found in 1956 with a crushed skull and the other who refused medical treatment in 1960 after a heart attack -- the agency concluded that there was no federal law it could use to pursue the cases.

Investigators have walked through rural cemeteries looking for clues, searched yellowed documents in government archives and interviewed witnesses, some so shattered by their experiences that they still refused to talk. Along the way, officials discovered a more complex story than they had imagined.

In nearly one-fifth of the 108 cases, they learned that the deaths had no connection to the racial unrest pulsing through the South at the height of the civil rights struggle.

In at least one case, the victim had been killed by a relative, but the family blamed the Ku Klux Klan. In other cases, a victim drowned or was fatally knifed in a bar fight. Two black women registering voters in the hot Mississippi summer died in a car accident. One man died under his mistress -- a bedroom secret kept for more than four decades until the bureau came calling.

The FBI's project, which at its peak involved more than 40 agents working in cities across the South and along the Eastern Seaboard, was the agency's most focused campaign to find out what happened in the deaths. For some families, hopes of a legal reckoning have been dashed, but the investigation has produced a different kind of accounting.

"These racially motivated murders are some of the greatest blemishes on our nation's history," said Thomas E. Perez, assistant attorney general for civil rights. "We owe it to people who were all a part of this struggle to be persistent. . . . If we can solve a number of these cases, that's fantastic. But if we can bring to closure all of these cases, I think this will be well worth the effort."

At the Southern Poverty Law Center in Montgomery, Ala., where the names of victims are etched on the walls of the organization's civil rights memorial, President Richard Cohen added, "Justice in a few of those cases is going to have to serve as a symbolic victory in all of them."

Long-lost evidence

From a conference room on the third floor of the FBI's J. Edgar Hoover Building in the District, the civil rights struggle continues. But four decades or longer after the deaths, nearly every aspect of the trail has gone cold.

Special Agent James Hosty, a former police officer from Kansas who joined the FBI after helping capture the notorious "BTK" serial killer, has spent three years hunting down leads in a case near Atlanta.

In 1946, four black sharecroppers were killed on Moore's Ford Bridge in Walton County, Georgia, prompting President Harry S. Truman to order the FBI to work round-the-clock to bring the shooters to justice. As many as two dozen people, some of them prominent members of the community, might have been involved in the deaths, investigators say.

But no charges were filed -- and volumes of case files sat untouched in FBI archives in Silver Spring for decades until the investigation was reopened by Howard Hatfield, who is an assistant special agent in charge at the Atlanta office, and an agent was assigned full time to the case.

"It basically took six to eight months to get through those records and determine who was alive or dead," Hosty said.

Some of those Hosty thinks witnessed or were involved in the killings had neither a Social Security number nor any other identifier that would allow him to determine whether they are alive and could be questioned or prosecuted.

The case remains unsolved, but new evidence allowed investigators to secure a search warrant in 2008, 62 years after the deadly encounter. FBI agents in Atlanta said they continue to work leads, hoping for a breakthrough from witnesses who at the time feared talking to authorities but since might have changed their minds.

In many of the unsolved cases, family members or victims' rights advocates have complained about how long it has taken for the federal government to investigate and about what they say is the lack of results. But more reasonable expectations are called for by Alvin Sykes, who was part of a successful effort to have the government reopen the investigation into the 1955 killing of 14-year-old Emmett Till, a Mississippi case that helped launch the civil rights movement.

"From the beginning, our focus was not just to prosecute cases but to find the truth," Sykes said. "We're not disappointed, but we do expect to find a significant number of more cases through the outreach effort, a criminal manhunt to find these people, and go from there."

Few legal tools

"Welcome to my headache," said Deitle, who was handpicked by the current FBI director, Robert S. Mueller III, to lead the re-energized civil rights effort.

The government has scant legal tools at its disposal in prosecuting the decades-old deaths because it can use just three federal statutes on the books before 1968, when Congress passed an expansive statute governing civil rights prosecutions.

The pre-1968 statutes apply in homicides only if a victim was killed on federal land; a victim was kidnapped and killed; or if an explosive device was transported across state lines with the intent to injure, according to Paige Fitzgerald, a Justice Department lawyer who played a central role in two of the cold cases that went to trial in recent years.

The FBI looks for room to maneuver within the old statutes. In a Florida killing, for example, an agent was dispatched to secure Global Positioning System coordinates to determine whether the killing occurred on land once belonging to a Native American tribe.

One case has drawn the agency's focused attention because it might be connected to other interstate Ku Klux Klan attacks.

On Dec. 10, 1964, Frank Morris, a shoe store owner in Ferriday, La., woke to the sound of tinkling glass. He emerged from a cot at the back of the burning building with third-degree burns covering his body. Morris survived four days in a hospital, but he wasn't able to name the attackers before he died.

At the time, FBI investigators found a charred finger near the crime scene that did not belong to Morris. Over the years, the finger was lost. But an agent had recorded a fingerprint, which remains in the FBI's files.

"So," Deitle asked one morning last month, "who's missing a finger in Ferriday?"

An undercover agent has been canvassing the town for a fingerless man, and the FBI lab is searching for fingerprint matches. But in the meantime, the case remains unsolved.

In an FBI office in Jackson, Miss., Jenny Williams, a supervisory special agent, has instructed 11 agents working on nearly four dozen cold cases to take nothing for granted -- even reports of the demise of the prime suspects, especially when death certificates are not available.

"We definitely don't take someone's word for it," Williams said. "We'll send people out to a cemetery. We have evidence that's a picture of a tombstone in a cemetery, old small-town family cemeteries."

Special Agent Jeromy Turner walked a 300-headstone cemetery in Yazoo City, Miss., four times looking for a dead man. Relatives insisted that the man was buried in a plot there, but "I never could find him," Turner said. "Finally, I was able to locate a funeral home owner who had the death certificate that showed he was buried in that cemetery, but the family had disowned him." There was no headstone marking his grave.

Among the most promising cases are those in which accomplices have not been prosecuted. That is a central focus in the killing of Louis Allen, a logger and member of the NAACP in Amite County, Miss., who was ambushed in January 1964 after years of threats.

Allen's son Henry and other family members have plastered the community with posters thanking God "for anyone willing to come forward to solve this heinous crime. Anonymity promised." They are offering a $20,000 reward for information.

Deitle, who helped investigate the New York Police Department shooting of immigrant Amadou Diallo 11 years ago, said the FBI effort is one of the last opportunities to investigate the dark alleys of the segregated past.

"If we don't correct history, then who's going to go back through this? Who's going to fix history to make it accurate?" she asked.

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Jan 8, 2010

LCCR Coalition Members - Leadership Conference on Civil and Human Rights

Beginning in 1950 with 30 organizations, mostly civil rights and labor groups, the LCCR has grown in numbers, scope, and effectiveness. Here you will find a listing of the more than 200 national organizations that comprise the LCCR.

Bolded text denotes LCCR Executive Committee membership.

For information on how to become a LCCR member organization, please contact New Member Information at haywood@civilrights.org. Please note that to be eligible for membership, an organization must share LCCR's principles and purposes, be national in scope, and conduct an ongoing civil rights program.

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Aug 18, 2009

Obama Needs to Reframe the Health-Care Debate

Obama needs to reframe the debate.

By Jonathan Alter | NEWSWEEK

Published Aug 15, 2009

From the magazine issue dated Aug 31, 2009

The United States has two parties now—the Obama Party and the Fox Party. The Obama Party is larger, but it is unfocused and its troops are whiny. The Fox Party, which shows up en masse to harass politicians, is noisy and practiced in the art of simplistic obstruction. As the health-care debate rages, it's the Party of Sort-of-Maybe-Yes versus the Party of Hell No! The Yessers are more lackadaisical because they've forgotten the stakes—they've forgotten that this is the most important civil-rights bill in a generation, though it is rarely framed that way.

The main reason that the bill isn't sold as civil rights is that most Americans don't believe there's a "right" to health care. They see their rights as inalienable, and thus free, which health care isn't. Serious illness is an abstraction (thankfully) for younger Americans. It's something that happens to someone else, and if that someone else is older than 65, we know that Medicare will take care of it. Polls show that the 87 percent of Americans who have health insurance aren't much interested in giving any new rights and entitlements to "them"—the uninsured.

But how about if you or someone you know loses a job and the them becomes "us"? The recession, which is thought to be harming the cause of reform, could be aiding it if the story were told with the proper sense of drama and fright. Since all versions of the pending bill ban discrimination by insurance companies against people with preexisting conditions, that provision isn't controversial. Which means it gets little attention. Which means that the deep moral wrong that passage of this bill would remedy is somehow missing from the debate.

Sure, it's important to fight for a public option (or a souped-up cooperative that can be made nearly as good). And we need to stand against a secret deal with Big Pharma, tighten insurance regulation, and assure that the bill includes language establishing clearly that doctors and patients—not bureaucrats, who are no better than insurers—make medical decisions. But these worthy goals have overshadowed the moral principle of nondiscrimination. The well-meaning woman who left a message at my office saying that she wouldn't demonstrate in support of any bill without a public option has lost her perspective.

The same goes for those who focus on cost ahead of principle. Whether we can "bend the cost curve" in five years or 10 years is fundamentally unknowable. Washington's elite policy mandarins obsess over "out-year" projections that never prove accurate. We must "pay" for the bill with new revenue streams, but let's not pretend that any of the real costs (and incentivized cost savings) are discernible now. Look at "cash for clunkers." The money that Congress set aside for a year lasted less than a week. The short-term projections were off by 99 percent. Any bill this big will be full of unintended consequences and will have to be fixed. The only way the system can't be fixed is if the bill dies and no one tries reform again for many years.

History suggests that major social policy unfolds on a continuum. The Social Security Act of 1935 disappointed liberal New Dealers because what was called "old-age insurance" covered only about half the adult population. It excluded farmhands, domestics, employees of small businesses, and most blacks. That was because FDR needed the votes of Southern Democrats, the Blue Dogs of their day. (The bill cleared the House Ways and Means Committee with only one Republican vote.) Similarly, the Civil Rights Act of 1957, immortalized in Robert Caro's Master of the Senate, was weak tea. It had to be strengthened by the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In the later bills, Lyndon Johnson betrayed Southerners he had made deals with in 1957. If Nancy Pelosi can't break Rahm Emanuel's promise to Big Pharma's Billy Tauzin this year, she can try to break it in the future. And Tauzin will lobby for more favors as the all-important new regulations are issued. Nothing in Washington is ever set in stone.

The only thing that should be unbreakable in a piece of legislation is the principle behind it. In the case of Social Security, it was the security and peace of mind that came with the knowledge of a guaranteed old-age benefit. (Ronald Reagan and George W. Bush got slam-dunked when they tried to mess with that.) In the civil-rights bills, the principle was no discrimination on the basis of an unavoidable, preexisting "condition" like race.

The core principle behind health-care reform is—or should be—a combination of Social Security insurance and civil rights. Passage would end the shameful era in our nation's history when we discriminated against people for no other reason than that they were sick. A decade from now, we will look back in wonder that we once lived in a country where half of all personal bankruptcies were caused by illness, where Americans lacked the basic security of knowing that if they lost their jobs they wouldn't have to sell the house to pay for the medical treatments to keep them alive. We'll look back in wonder—that is, if we pass the bill.

Alter, a national-affairs columnist, is the author of The Defining Moment: FDR’s Hundred Days And The Triumph Of Hope.

Find this article at http://www.newsweek.com/id/212162

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Aug 10, 2009

US Commission on Civil Rights Must Be Replaced, Rights Leaders Say

by Hazel Trice Edney
NNPA Editor-in-Chief
Originally posted 8/10/2009

WASHINGTON (NNPA) – The 52-year-old U. S. Commission on Civil Rights, historically a leading force for overturning racist policies and enacting civil rights laws against Jim Crow segregation, has become obsolete and must be replaced, say civil rights leaders who are moving to make it happen.

Largely because of right wing political domination and appointees stacked by the former Bush Administration, rights leaders say the eight-member Commission has done little for civil rights progress lately and over the past several years has done more to turn back the clock.

“There should be a new commission. You need a commission because you need a commission to do what it did when it was doing what it was supposed to do, which is look at all these new problems – the old ones and the new ones,” says constitutional law expert Mary Frances Berry, a former member of the commission, who served 11 years as its chair.

“Discrimination complaints on the basis of race have increased exponentially at the [Equal Employment Opportunity Commission]. And most of them are found to be valid. This has just happened over the past few years.”

Berry, who resigned from the Commission in late 2004, continues, “People are still having problems on their jobs, we’ve still got police - community issues and everything. People are getting shot, every kind of issue you can think of.
“The fact that Obama is president doesn’t mean that the issues just went away,” she said in the interview with the NNPA News Service.

“It doesn’t matter who the president is. You need an independent watch dog that will investigate and look at civil and human rights issues and try to build consensus and make recommendations, and work to try to get something done.”

In her new book, “And Justice for All”, an extensively researched history of the Commission and America’s “continuing struggle for freedom”, Berry says the current commission must be replaced with a U. S. Commission on Civil and Human Rights in order to renew its power against injustice.

“The addition of human rights could make clear a concern with the nexus between race, sex, disability, age, national origin, sexual orientation, religious discrimination, poverty and civil liberties concerns,” Berry writes at the conclusion of the 400-page book. “A civil and human rights commission could also monitor U. S. compliance with the international human rights covenants to which we are a party and encourage adoption of those we have not approved.”

The U.S. Commission on Civil Rights is supposed to be an independent, bi-partisan body that was established by Congress in 1957 under the administration of President Dwight D. Eisenhower. It is primarily a fact-finding body that looks into allegations of discrimination based on race, color, religion, sex, age, disability or national origin.

Berry recalls how the Commission worked with civil rights greats Dr. Martin Luther King Jr., Roy Wilkins, Whitney Young, and others to document facts that led to civil rights laws.
“The impact of the U. S. Commission on Civil Rights is sort of an overall missing piece of how we got over,” she describes.

While civil rights battles raged in the streets, lunch counters and jail cells, the Commission - which still has an advisory committee in each state - would visit communities; using subpoena power to compel both Blacks and Whites to give often shocking testimony about their personal experiences of injustices as well as those that had witnessed.

“The commission from that time until the Reagan Administration was a force for trying to make change. They would make recommendations. They worked with everybody,” Berry recalls.

Then the Reagan politics began.
In 1983, two years after he took office, Reagan fired Berry, Blandina C. Ramirez and Murray Saltzman from the commission after they publicly disagreed with him on his administration’s civil rights policies.

“They decided to fire commissioners and appoint those who would be mouth pieces,” Berry said.

Rather than accept Reagan’s action, Berry and Ramirez sued and won back their seats after the Federal District Court in Washington, D.C. ruled that the commissioners served as watchdogs.

Berry chuckles as she recalls the judge’s comment, “’You can’t fire a watchdog for biting.’”

In her 24 years on the Commission, Berry became known for her fights with presidents, including challenges to Jimmy Carter, Reagan, George H. W. Bush, Bill Clinton and George W. Bush.
She resigned from the Commission in late 2004 amidst intense disputes with President Bush and his appointees on the Commission. In the book she states, “President George W. Bush essentially ‘fired’ me.”

Now – though she mentions him by name only three times in the book - she’s challenging both President Barack Obama and Congress from the outside. She clearly views his administration as an opportunity to strengthen the Commission and return it to its original mission and purpose.

The movement is growing.

Laura Murphy, a senior consultant for the Campaign for a New Domestic Human Rights Agenda, a coalition of more than 50 civil rights groups that’s pushing for a new Commission among other causes, says they’re making headway.

“The United States has been cited for its failure to end racial profiling, for its failure to end the high rate of incarceration of juveniles. These are the very issues that a reformed and strengthened U. S. Commission on Civil and Human Rights could give attention to,” she says.

Murphy, former director of the ACLU’s Washington Legislative Office, says the group is in conversation with members of the House and Senate Judiciary Committees. She says the Obama Administration has also been receptive.

“I think we will see hearings before the end of the year,” she said.
Currently the Commission has eight members, including six Republicans and two Democrats.

A move by Bush in 2004 created the conservative majority. Bush solidified the conservative Commission after two Republicans who had been Republicans when appointed - Russell Redenbaugh (who has since resigned) and Abigail Thernstrom - reregistered as independents. Bush then installed a fifth and sixth Republican.

Democratic President Obama will not get an appointment until 2010. And even then he’ll only get one.
Meanwhile, divisive issues such as police profiling and misconduct; affirmative action and same-sex marriage are not being dealt with in fact-finding hearings by the Commission, Berry points out. Instead, in recent years, the Commission has been busy opposing civil rights progress, including its opposition to the renewal of the Voting Rights Act, hate crimes laws, and arguing against diversity as a benefit in public education.

Other civil rights leaders agree a new Commission is the answer.

A recent report issued by The Leadership Conference on Civil Rights, led by its President Wade Henderson, says the current Commission is nearly irreparably flawed.

“Today, the commission is so debilitated as to be considered moribund. With a new administration, there is the opportunity to take a fresh look at this venerable institution and make the necessary changes to restore it to its former status as the ‘conscience of the nation,’” states the report.

The report pushes for an ''entirely new entity that returns to the commission’s original mandate and expands on it to preserve and protect the civil and human rights of all American citizens.”

Titled, “Restoring the Conscience of a Nation”, the Report includes the following recommendations which essentially mirror those advocated by Berry:

•Creation of a new commission, consisting of seven members. The members would serve four year staggered terms. Each commissioner will be appointed by the president, and be subject to Senate confirmation.

•Authorization of the commission to hold hearings across the country to better understand the landscape of equal opportunity involving various regions and protected groups. Based on these hearings, and other information, the commission would have the responsibility to make policy recommendations to the president and Congress. The commission would retain the authority to subpoena witnesses to participate in such hearings.

•The name of the commission would be the United States Commission on Civil and Human Rights in order to “reflect the human rights dimension of its work” and “make more explicit its authority to examine U.S. compliance with these international treaties as part of its existing mandate to examine compliance with legal obligations that affect civil rights.”

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Jun 27, 2009

White House Considers Executive Order on Indefinite Detention of Terror Suspects

By Dafna Linzer and Peter Finn
ProPublica and Washington Post Staff Writer
Saturday, June 27, 2009

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the military facility in Cuba, White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible. Several officials said there is concern in the White House that the administration may not be able to close the prison by the president's January deadline.

White House spokesman Ben LaBolt said that there is no executive order and that the administration has not decided whether to issue one. But one administration official suggested that the White House is already trying to build support for an order.

"Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said. Such an order could be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should be prosecuted or released.

The Justice Department has declined to comment on the prospects for a long-term detention system while internal reviews of Guantanamo detainees' cases are underway. One task force, which is assessing detainee policy, is expected to complete its work by July 21.

In a May speech, President Obama broached the need for a system of long-term detention and suggested that it would include congressional and judicial oversight. "We must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone," he said.

Some of Obama's top legal advisers, along with a handful of influential Republican and Democratic lawmakers, have pushed for the creation of a "national security court" to supervise the incarceration of detainees deemed too dangerous to release but who cannot be charged or tried.

But the three senior government officials said the White House has turned away from that option, at least for now, because legislation establishing a special court would be difficult to pass and likely to fracture Obama's party. These officials, as well as others interviewed for this article, spoke on the condition of anonymity because they were not authorized to speak publicly about internal deliberations.

On the day Obama took office, 242 men were imprisoned at Guantanamo. In his May speech, the president outlined five strategies the administration would use to deal with them: criminal trials, revamped military tribunals, transfers to other countries, releases and continued detention.

Since the inauguration, 11 detainees have been released or transferred, one prisoner committed suicide, and one was moved to New York to face terrorism charges in federal court.

Administration officials said the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release. Two officials involved in a Justice Department review of possible prosecutions said the administration is strongly considering criminal charges in federal court for Khalid Sheik Mohammed and three other detainees accused of involvement in the Sept. 11, 2001, attacks.

The other half of the cases, the officials said, present the greatest difficulty because these detainees cannot be prosecuted in federal court or military commissions. In many cases the evidence against them is classified, has been provided by foreign intelligence services or has been tainted by the Bush administration's use of harsh interrogation techniques.

Attorney General Eric H. Holder Jr. agreed with an assessment offered during congressional testimony this month that fewer than 25 percent of the detainees would be charged in criminal courts and that 50 others have been approved for transfer or release. One official said the administration is hoping that as many as 70 Yemeni citizens will be moved, in stages, into a rehabilitation program in Saudi Arabia.

Three months into the Justice Department's reviews, several officials involved said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees cannot be charged or released.

The White House has spent months meeting with key congressional leaders in the hope of reaching agreement on long-term detention, although public support for such a plan has wavered as lawmakers have sought to prevent detainees from being transferred to their constituencies.

Lawyers for the administration are now in negotiations with Sens. Carl M. Levin (D-Mich.) and Lindsey O. Graham (R-S.C.) over separate legislation that would revamp military commissions. A senior Republican staff member said that senators have yet to see "a comprehensive, detailed policy" on long-term detention from the administration.

"They can do it without congressional backing, but I think there would be very strong concerns," the staff member said, adding that "Congress could cut off funding" for any detention system established in the United States.

Concerns are growing among Obama's advisers that Congress may try to assert too much control over the process. This week Obama signed an appropriations bill that forces the administration to report to Congress before moving any detainee out of Guantanamo and prevents the White House from using available funds to move detainees onto U.S. soil.

"Legislation could kill Obama's plans," said one government official involved. The official said an executive order could be the best option for the president at this juncture.

Under one White House draft that was being discussed this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system.

Such detainees -- those at Guantanamo and those who may be captured in the future -- would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge.

Officials say the plan would give detainees more rights and allow them a better chance than they have now at Guantanamo to one day end their indefinite incarceration.

But some senior Democrats see long-term detention as tantamount to reestablishing the Guantanamo system on U.S. soil. "I think this could be a very big mistake, because of how such a system could be perceived throughout the world," Sen. Russell Feingold (D-Wis.) told Holder.

One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.

"Going forward, unless it's an extraordinary case, you will not see new transfers to the U.S. for indefinite detention," the official said.

Instituting long-term detention through an executive order would leave Obama vulnerable to charges that he is willing to forsake the legislative branch of government, as his predecessor often did. Bush's detention policies suffered defeats in the courts in part because they lacked congressional approval and tried to exclude judicial oversight.

"There is no statute prohibiting the president from doing this through executive order, and so far courts have not ruled in ways that would bar him from doing so," said Matthew Waxman, who worked on detainee issues at the Defense Department during Bush's first term. But Waxman, who waged a battle inside the Bush administration for more congressional cooperation, said that the "courts are more likely to defer to the president and legislative branch when they speak with one voice on these issues."

Tawfiq bin Attash, who is accused of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.

Little information on bin Attash's case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

"These issues haven't morphed simply because the administration changed," said Juan Zarate, who served as Bush's deputy national security adviser for counterterrorism and is now at the Center for Strategic and International Studies in Washington.

"The challenge for the new administration is how to solve these legal questions of preventive detention in a way that is consistent with the Constitution, legitimate in the eyes of the world and doesn't create security loopholes that cause Congress to worry," Zarate said.

ProPublica is an independent, nonprofit newsroom that produces investigative journalism in the public interest. Washington Post staff researcher Julie Tate contributed to this report.

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