Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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 Such an order could be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should be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.
Politics
Comments
We need some form of mathematical calculus to measure the amount of shit one can inherit given a predecessor's incompetence. I would argue one would need to use logarithims to find a large exponential value.
Given W.'s gross incompetence, one would think the GOP would focus on reforming itself with an eye on functional excellence and capable people, instead they seem even more intent on championing idiots spewing old talking points.
This particular hole, how to hold or prosecute and sentence suspected terrorists we are certain are in fact guilty whose rights have also been violated while detained, is just one of many examples of the costs of an electorate whose collective head is up its ass.
Posted by: Michael Heath | June 30, 2009 9:29 AM
We can't blame Obama for this. He tried to close down Gitmo completely. The fault lies entirely with Congress, Democrat and Republican.
Posted by: Brandon | June 30, 2009 9:40 AM
Brandon stated:
Not closing Gitmo pronto is an almost distinctly different issue. Closing Gitmo is irrelevant to how we legally process and disposition detainees like KSM who we can't try in criminal courts given they'd most likely be dismissed, an outcome which is politically unacceptable for good cause. We'd still have this dilemma even if we moved him and others like him to the States.
Congress in this case is not culpable in terms of their chickening out on not funding the transfer of detainees to holding facilities in the U.S. They are instead culpable for allowing President Bush to torture detainees while also allowing W. and now Obama's Justice Dept. to avoid the prosecution of the Bush Administration's war crimes.
Posted by: Michael Heath | June 30, 2009 10:09 AM
Any day now I'm expecting Obama to come out as a creationist who wants to meddle in science funding. I voted for Obama because McCain was a worse choice. Now almost every area where I thought Obama would be an improvement, it turns out it was not the case. I never should have voted in the presidential election.
Posted by: Joshua White | June 30, 2009 10:22 AM
But what constitutes the 'battlefield'. I could easily argue that the conflict is pretty much global. It's certainly not limited to just Iraq and Afghanistan.
I never understood the administrations reluctance to assign prisoner-of-war status to most of the detainees. Why spend all that effort on a trial and endure all the possible ramifications when, in this case, you can basically hold a POW forever .
Posted by: NoAstronomer | June 30, 2009 10:22 AM
I'm with Joshua #4. There's only so much you can blame the predecessor and still be credible.
Yes, he inherited a boatload of shit, but you can either start cleaning up, leave it alone, or make even more shit. Yes, dishonest congressmen (does anyone actually think they are considering setting these guys free in Omaha?) and the possible dangerousness of some of the detainees work against him, but there must be a way to deal with it.
I'm not optimistic at this point.
Posted by: BaldApe | June 30, 2009 10:45 AM
And I guess that POW status doesn't require an actual declaration of war. How convenient. And have we even put the Iraq and Afganistan "operations" in the actual budget yet, or are those still funded through supplemental appropriations?
Posted by: Shawn Smith | June 30, 2009 10:53 AM
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.
Tough luck, I say. No matter how bad a bad guy, if you can't prove a crime, you let him go. That's what's "The Wire" told me: you need proof.
Posted by: Patrick | June 30, 2009 11:06 AM
The short answer, because we want to be able to interrogate them. As a POW the only information that can be legally required is their name, rank and serial number.
The slightly longer answer is that a POW is not a criminal. A POW isn't held because they've done something wrong. They are just soldiers who have been removed from the fight. They have rights and protections that may not be entirely appropriate for a criminal detention.
A terrorist is not simply an enemy soldier, but a criminal. At the same time the presumption of innocence, a bedrock principle of our legal system, means that guilty sometimes go free. We accept this for many crimes. But when it comes to terrorism, we are so afraid of letting even one go that we toss presumption of innocence out the window. Yet without it we have no established legal system on which to fall back. Hence we see repeated (and doomed) attempts to military courts.
That is the true power of terrorism, not in the lives it takes or the material it destroys, but in it's ability to make us so afraid that we abandon our core principles. Terrorists will never destroy America. But they may well get us to destroy it for them.
Posted by: Abby Normal | June 30, 2009 11:54 AM
Well, in an interview on Hardball yesterday, Robert Gibbs said that they weren't going to issue an executive order on indefinite detention and that they were going to work with Congress on it.
Either way, using the POW status isn't really a permanent solution for many of these guys, it's just kicking the can down the road. Unlike say, the IRA, who--no matter how despicable their tactics--had a set of defined goals and a leadership that could be negotiated with, the most dangerous of the Al Qadia crew are not rational actors. They simply want to destroy America. Even if we completely pulled out of the Middle East (which is never going to happen in our lifetimes) they're not suddenly going to down their arms and go home.
So when operations are finally complete in Iraq and Afghanistan, the POW rationale evaporates and we're still left with a bunch of unprosecutable terrorists who hate America (although perhaps they'll all be in their 70s and 80s by then!).
Posted by: tacitus | June 30, 2009 1:00 PM
Posted by: CW | June 30, 2009 1:10 PM
It was always my impression that part of the reason illegally obtained evidence is inadmissible in court (apart from the risk that it might be false, such as an enforced confession) is to force investigators to stay within the law if they want a confession. That is, make their desire to nail the bad guy work for the rule of law, not against it.
In order for that to work, we'll sometimes have to let real live criminals loose. It's unfortunate, but the alternative is worse.
Posted by: konrad_arflane | June 30, 2009 1:50 PM
But at least a "POW status" is some kind of improvement, isn't it? At least there are accepted national and international rules for the treatment of detained "POW's". Right now, the "detainees" don't even have that much. Wouldn't that at least allow the Administration to skirt the issue of "indefinite detention", if only temporarily enough to close Gitmo? As Abby points out, POW status would prevent torture, so Bush didn't want to do that. But Obama shouldn't have that as an issue. It at least shifts the debate to what the "war" actually is.
No, I don't like the notion of "indefinite detention" either. But Gitmo is a real black eye on the country. I think it would be a step in the right direction to at least give them some kind of legal status, even if it's not a good one.
Posted by: Scott | June 30, 2009 3:20 PM
I don't get why there is no admissible evidence to convict KSM and the other bad guys. How do we know they're bad if there's no non-torture evidence against them?
Posted by: Herb | July 1, 2009 4:32 AM
lol.
that made me think of this image
:-p
Posted by: Jadehawk | July 1, 2009 3:00 PM
bah. disregard my last post. wrong thread. I fail at using tabs :-p
Posted by: Jadehawk | July 1, 2009 3:02 PM