Editore"s Note
Tilting at Windmills

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June 27, 2009

EXECUTIVE ORDER, INDEFINITE DETENTION.... About a month ago, President Obama delivered a speech at the National Archives on national security, and described his vision of a five-part system for detainees in U.S. custody. The fifth is made up of detainees who "cannot be prosecuted yet who pose a clear danger to the American people," and the president described what was, in effect, a system of indefinite detention without charges.

Obama added that his administration would submit such a system to checks and balances, and "will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

The administration has since come realize that working with Congress on this is practically impossible, so a new approach is under consideration.

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.

Now, there are some ambiguities here. A White House spokesperson said "there is no executive order and that the administration has not decided whether to issue one." Time's Michael Scherer added, "A White House official tells me that there is no 'draft executive order' and that the task force charged with investigating this issue has not completed its work."

At the same time, according to the Post's report, an administration official suggested that the White House is 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.

At first blush, this sounds very hard to believe. Why would civil liberties group encourage the White House to pursue indefinite detention through an executive order? The answer may be that an executive order is preferable to a new law negotiated through Congress, since an executive order can be easily rescinded.

For that matter, Spencer Ackerman talked to Kate Martin of the Center for National Security Policy who explained that the devil is in the details of the policy.

[Martin] doesn't have any knowledge about the order aside from what she's read, but says, "If the administration issues an executive order like the one [Linzer and Finn] describe [in the WaPo piece], it'll be a major victory." That's because Martin thinks that established law holds that the administration doesn't require any additional legal authorization to hold anyone captured on the battlefields of Afghanistan without charge until the end of hostilities -- that comes from the September 2001 Authorization to Use Military Force, as does dispensation for the 9/11 plotters -- but would need to charge or release any detainee picked up outside either Afghanistan or Iraq. Martin thinks the reported executive order might be the only thing standing in the way of an even broader congressional effort of the sort seen in the war supplemental that Daphne critiqued yesterday.

While we wait for that additional information, there's one simple concept policymakers should keep in mind: locking people up indefinitely, without charging them with a crime or giving them a fair trial, is always a recipe for disaster.

Steve Benen 8:35 AM Permalink | Trackbacks | Comments (20)

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So much for due process and other such quaint doctrines? Consider that without admissible evidence, our system would have freed the Oklahoma City bombers.

Posted by: JackD on June 27, 2009 at 9:27 AM | PERMALINK

the obama administration keeps fuckin' with these noxious bush-think policies of Supreme Executive and it raises my blood pressure. If Professor-Constitutional-Law-Mr-President-Sir doesn't get it that he is setting up some really ugly nasty precedents, maybe a 5th grader in a civics class can explain it to him...i mean -- shit, man...

Posted by: neill on June 27, 2009 at 9:34 AM | PERMALINK

Perhaps we could give the planning group a copy of the United States Constitution, and underline the portion where the President swore an oath to uphold it.

Posted by: Goose on June 27, 2009 at 9:47 AM | PERMALINK
. . . there's one simple concept policymakers should keep in mind: locking people up indefinitely, without charging them with a crime or giving them a fair trial, is always a recipe for disaster.

I disagree. The simple concept policymakers should keep in mind is that locking people up this way is wrong and contrary to every principle on which this country was founded.

Posted by: noncarborundum on June 27, 2009 at 10:06 AM | PERMALINK

That's what you have to say, Benen? You leftwing sap.

Posted by: Jonny Amplesack on June 27, 2009 at 10:30 AM | PERMALINK

I have been an ardeny supporter of Obama from the get go. I say give the guy a chance. Let's see what's really going on befor we go Glenn Beck here. With that said if Obama does support or issue an executive order like this I'll oppose him until my last breath.

Posted by: Gandalf on June 27, 2009 at 10:39 AM | PERMALINK

Gandalf, the core issue is summed up in the NYT's last graf:

>>Still, Ms. Massimino said, the presidents advisers, including Attorney General Eric H. Holder Jr. and Gregory B. Craig, the White House counsel, seem frustrated by what they see as a host of bad options and are struggling with the prospect that some prisoners could never be brought to trial.

Obama already indicated in his infamous 'constitution' speech last month that he's bought into the idea that some suspects who cannot be convicted of crimes should not be freed. That policy is lawless.

Specifically, it's built on the presumption that there should be no consequences for the torture of prisoners during the Bush administration. That means not only no prosecutions of the torturers and no embarrassing public investigations, but also no trials that would shed light on the torture inflicted or who ordered it -- and above all no admission that the 'evidence' against suspects was poisoned by the existence of a torture regime.

Posted by: smintheus on June 27, 2009 at 5:27 PM | PERMALINK

It would appear that GWB has left another little bomb for the Obama administration. The torture issue almost certainly ensures that, when brought to trial, some detainees will not be convicted and they will have to be set free. The White House knows exactly what the reaction of the Republicans (loons and others) will be and most assuredly is searching for any way to avoid that result. They won't be able to and the Republicans probably are aware of that.
Unfortunately for the Obama administration, they are just going to have to take it.

Posted by: Doug on June 27, 2009 at 6:59 PM | PERMALINK

"cannot be prosecuted yet who pose a clear danger to the American people,"

Am I the only one who thought of Dick "Dick" Cheney when I read this?

Posted by: melior on June 27, 2009 at 8:37 PM | PERMALINK

"locking people up indefinitely, without charging them with a crime or giving them a fair trial, is always a recipe for disaster"

There's no recipe about it. Locking people up indefinitely, without charging them with a crime or giving them a fair trial, is always a disaster.

Posted by: Ross Best on June 27, 2009 at 8:58 PM | PERMALINK

We're reasonable people. It would be irresponsible not to assume that the bushies might have got lucky and actually hoovered up a few terrorists among the hundreds of innocents (the net was cast very wide after all). And given that the previous administration has almost certainly poisoned the prosecutorial well, rendering almost all the evidence inadmissible, there may well be a need to hold some of the detainees, but no legal way of doing so.

Now our President needs to thread the needle, once again, and let most of the detainees go, while making a "you've got to trust me" case for the rest, after his predecessor made that argument a "fool me twice" nightmare.

Posted by: royalblue_tom on June 28, 2009 at 12:18 AM | PERMALINK

"...there may well be a need to hold some of the detainees, but no legal way of doing so."

If it's not legal, why do it? The 'need' is to follow the law. Amazing that anybody would put credence in tainted 'evidence', or grant arbitrary or tyrannical powers to an elected official to nullify our entire legal system whenever he chooses.

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