Executive order, indefinite detention

EXECUTIVE ORDER, INDEFINITE DETENTION…. About a month ago, President Obama delivered a speech at the National Archives on national security, and described his vision of a five-part system for detainees in U.S. custody. The fifth is made up of detainees who “cannot be prosecuted yet who pose a clear danger to the American people,” and the president described what was, in effect, a system of indefinite detention without charges.

Obama added that his administration would submit such a system to checks and balances, and “will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.”

The administration has since come realize that working with Congress on this is practically impossible, so a new approach is under consideration.

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.

Now, there are some ambiguities here. A White House spokesperson said “there is no executive order and that the administration has not decided whether to issue one.” Time‘s Michael Scherer added, “A White House official tells me that there is no ‘draft executive order’ and that the task force charged with investigating this issue has not completed its work.”

At the same time, according to the Post‘s report, an administration official suggested that the White House is 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.

At first blush, this sounds very hard to believe. Why would civil liberties group encourage the White House to pursue indefinite detention through an executive order? The answer may be that an executive order is preferable to a new law negotiated through Congress, since an executive order can be easily rescinded.

For that matter, Spencer Ackerman talked to Kate Martin of the Center for National Security Policy who explained that the devil is in the details of the policy.

[Martin] 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 [in the WaPo piece], 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.

While we wait for that additional information, there’s one simple concept policymakers should keep in mind: locking people up indefinitely, without charging them with a crime or giving them a fair trial, is always a recipe for disaster.