Dispatches from the Creation Wars

Obama and Indefinite Detention

There are reports that the Obama administration is getting ready to put out an executive order allowing indefinite detention of some of the detainees held at Guantanamo Bay.

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.


The conflict here has been clear for a couple of months. There are some who are being detained at Gitmo who probably are very bad guys, like Khalid Sheik Mohammed, who probably can’t be convicted in civilian trials because all of the evidence obtained through torture and coercion will be inadmissible but who also can’t be responsibly released. I’ve seen estimates that put the number between 50 and 100.

So that has put the Obama administration in a bind as to what to do with them. Go forward with the military commissions, which allow for some evidence of that kind to be admitted? But they promised to shut down those commissions and try them in civilian courts instead. Create an entirely new type of tribunal? Still looks hypocritical. And then there’s this weird comment in the article:

“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 Such an order could be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should be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.

But as my friend and colleague Spencer Ackerman points out at the Washington Independent, this is a highly unlikely statement:

What? What civil liberties organization actually encouraged the administration to set up a system of “prolonged detention” — the less euphemistic term would be indefinite detention — in the first place; let alone urged the administration to do it without congressional approval?

Update: Zach Roth at TPM reports that the Center for Constitutional Rights certainly doesn’t approve of the idea.

Update 2: CCR representatives say that in a recent White House meeting, they conveyed to administration officials that “any prolonged detention scheme was unacceptable, no matter how it was dressed.”

The ACLU has said the same thing. So what civil liberties groups are they referring to? None that I can think of. But then he quotes this:

However, Kate Martin of the Center for National Security Policy thinks that contrary to my insta-read above, the executive order reported in Linzer and Finn’s piece doesn’t sound like the Wittes proposal. She 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, 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. Martin has expressed her organization’s longstanding perspective on detainee matters to the administration’s detentions task force.

Martin is probably right that for those who were captured on the battlefield in either Afghanistan or Iraq can be held indefinitely without trial until the end of the fighting. That is long-established law and what is typically done with POWs (whether it should be or not is a separate question). But for anyone arrested anywhere else, that does not apply.

The war supplemental referred to in the article written by Daphne Eviatar, linked to in the above quote, will be discussed in a separate post.