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 Such an order could be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should be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 president introduced his “prolonged detention” policy in his May 21st speech announcing his plans for closing the military prison in Guantanamo Bay. At the time, however, he explained:
In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
As egregious a civil rights violation the concept of indefinitie detention without trail might be, the notion of such laws being set in motion outside of the legislative process has a distinctly Cheney/Rove sensation to it.
Glenn Greenwald was typically thorough in his criticism, including knocking the linked Washington Post article:
Anonymous trial balloon articles like this one are difficult to comment on because it’s obviously designed to announce that a certain policy is being considered before it’s actually written, and so none of the key details is known. Would Obama’s new detention powers apply only to current “War on Terror” prisoners at places like Guantanamo and Bagram, or would they also apply to future, not-yet-abducted detainees as well? Would these powers apply to detainees picked up anywhere in the world, far away from “war zones”? Would there be any judicial review or other meaningful oversight provisions so that — even in theory — this was something other than the unilateral, unchecked presidential power to detain indefinitely without charges? None of these important details is known (though the article notes that, under one White House proposal, “ongoing detention would be subject to annual presidential review”; the Emperor, sitting alone, will decree once a year whether they must remain in a cage).This specific article is even worse than the usual one of its type, since it’s particularly uncritical in passing along administration claims without any skepticism…
Worse, the article does not provide any information about the Obama officials whose mission the reporters are dutifully carrying out, so there’s no way to assess their motives.Those journalistic practices produce egregious sentences like this: “‘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.” I’d love to know which so-called “civil liberties groups” are pushing the White House for an Executive Order establishing the power of indefinite detention. It’s certainly not the ACLU or Center for Constitutional Rights, both of which issued statements vehemently condemning the proposal (ACLU’s Anthony Romero: “If President Obama issues an executive order authorizing indefinite detention, he’ll be repeating the same mistakes of George Bush”).
Greenwald also linked the following Rachel Maddow commentary, which aired at the time of Obama’s speech last month. Since this blog was not active at the time, I’ll embed it here, as I think she effectively captures my impression of the policy (be it encated by executive order or through Congress):
