Friday, June 26, 2009

Obama planning executive order asserting Presidential authority to hold Gitmo detainees indefinitely without trial

Camp X-Ray, Guantanamo Bay

One of my earliest posts on this blog (on November 11, a week after the election) was entitled, "Without Gitmo, we'll need...another Gitmo."

Sure enough, after promising to close the detention center at Guantanamo by next January and "suspending" the work of the military tribunals authorized by Congress, President Obama reinstituted those tribunals. Then, Democrats in Congress blocked the President's ability to transfer any detainees to U.S. soil. Now, according to the usual "senior government officials," the Obama administration "is drafting an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely."

Reportedly, given the near-total Congressional opposition to relocating prisoners in the U.S., the Administration fears "a battle with Congress that could stall plans to close" Gitmo.

Such an [executive] 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.


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.
When Obama took office, the overwhelming majority of detainees held for any amount of time at Gitmo had already been released (or, in a few cases, tried), but 242 remained. Obama has whittled that number down to 229 by releasing a few, mostly Chinese Uighers, and putting one guy on trial in a federal court. The Administration still hopes that about half of those can be released, if any countries would take them, and at least a few more can be tried in the U.S. However, after actually looking into every case, the Administration seems to have concluded, like its predecessor, that a sizable contingent are too dangerous to release but can't be tried for lack of evidence admissable in the regular courts.

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.
Obama and company are still working with Congress to try to come up with legislation both to revamp the military commissions and enable some form of long-term detention without trial. But they are worried that Congress might simply not get the job done or keep changing its mind:
"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.

To recap, while Obama would rather have Congress with him, he's prepared to try these guys before the existing military commissions (with a few changes in procedures) or to assert Presidential authority to hold them indefinitely without trial. Aha, some will say, another usurper...more shredding of the Constitution!

I see it differently. No President of either party is going to release someone he truly knows to be a dangerous al Qaeda terrorist, period. Never. This evolution of Obama's position was as inevitable as the sun rising in the morning. He's to be applauded for it, since he will take some flack from his left about it. Of course, Americans are opposed to closing Gitmo by two to one, so Obama need not worry a lot about political damage.

Which brings me to one added point. So far, Obama is not backing away from his order to close Gitmo within a year. His planned executive order to facilitate the indefinite detention of the 90 or so dangerous but untriable detainees still assumes that he's find some way to detain them inside the U.S. But Congress, rarely united, is united in its opposition to relocating any prisoners to U.S. soil. If he can't get fellow Democrats to remove that obstacle, he'll need to keep Guantanamo after all.

What do you think? Post a comment.

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