Barack Obama, May 21, 2009
I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees – not to avoid one. 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.
Last night, the Washington Post and Propublica published a joint article reporting that the Obama administration was considering an executive order that would "reassert presidential authority to incarcerate suspected terrorists indefinitely," according to three anonymous administration sources.
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 bypassing 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 U.S. military prison at Guantanamo Bay, Cuba, White House officials are growing increasingly worried that reaching quick agreement with Congress on a new detention system may prove impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January 2010 deadline.
White House spokesman Ben LaBolt did not directly respond to questions about an executive order but said the administration would address the cases of Guantanamo detainees in a manner "consistent with the national security interests of the United States and the interests of justice."
One administration official suggested the White House was already trying to build support for an executive 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 Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.
Civil liberties groups, including the Center for Constitional Rights immediately responded, leaving it clear that they were not at all supportive of prolonged detention. CCR's Shane Kadida
Prolonged imprisonment without trial is exactly the Guantanamo system that the President promised to shut down. Whatever form it takes - from Congress or the President's pen - it is anathema to the basic principles of American law and the courts will find it unconstitutional.... Another thing that's odd about this is the idea that this detention authority would somehow be more transient if it were authorized through executive order (which can be reversed at the stroke of the president's pen) rather than a statute (which could sit on the books indefinitely). If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent.
Another anonymous administration official gave a denial of the story to Marc Ambinder, but other outlets including the New York Times and the AP appear to have separate confirmation. The denial itself, repeated in an AFP story, says only that the draft order does not exist, not that the administration is not considering the move.
This seems pretty clearly to be a trial balloon by the adminstration, using a Friday news dump to determine how much backlash there would be against this extremely controversial order. It's a balloon that needs to be popped. A President saying that he has the unilateral power to hold anyone indefinitely outside of a theater of war is unacceptable after the past eight years of untrammeled executive authority. That a Democratic president would do so, after running and winning on a platform of transparency and the rule of law, is absolutely unacceptable. Not to mention unconstitutional, as the Supreme Court has ruled repeatedly in the last decade against the Bush administration.
President Obama also said, in his inaugural address:
As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake.
Which is precisely what this executive order would be: ""White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible." It would be unilateral executive action for expedience's sake.
Look at the example Marcy supplies: the evidence being used to hold Walid bin Attash, accused of involvement in the 2000 USS Cole bombing, comes from testimony from Abd al-Rahim al-Nashiri, and is probably inadmissable because it was gained through torture. As Marcy says, "Will Walid bin Attash be deprived a day in Court because we're covering up our own torture?"
This isn't how to solve the thorny problem of the detainees in this ongoing war. It's also not how to "move forward" from the legacy of torture and lawlessness of the past administration. Let's pop this trial balloon, and fast.