White House Preparing Executive Order on Indefinite Detention

Dafna Linzer at ProPublica:

The White House is preparing an Executive Order on indefinite detention that will provide periodic reviews of evidence against dozens of prisoners held at Guantanamo Bay, according to several administration officials.

The draft order, a version of which was first considered nearly 18 months ago, is expected to be signed by President Obama early in the New Year. The order allows for the possibility that detainees from countries like Yemen might be released if circumstances there change.

But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

Nearly two years after Obama’s pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.

The stated goal of this new policy is to give detainees who have been designated for indefinite detention the opportunity for more frequent reviews:

…a minimal review every six months, with and then a more lengthy annual review. Detainees will have access to an attorney, to some evidence against them and the ability to challenge their continued detention.

However it isn’t clear to whom these detainees would plead their cases. Would they meet directly with the President or administration officials? What would be their chances of changing their status through these reviews? I guess we’ll have to wait until the next administration official decides to anonymously leak some more specific information.

According to the Washington Post:

Those designated for prosecution but who are not charged could also have their cases reviewed under the proposed system in the executive order, the White House official said.

Detainees at Guantanamo would continue to have access to the federal courts to challenge their incarceration under the legal doctrine of habeas corpus. Officials said the plan would give detainees who have lost their habeas petition the prospect of one day ending their time in U.S. custody. And officials said the International Committee of the Red Cross has been urging the administration to create a review process.

I guess I must be kind of simple-minded compared to the geniuses in the Obama administration, but I tend to agree with Laura Murphy of the ACLU, who told the WaPo:

“Indefinite detention without charge or trial is wrong, whether it comes from Congress or the president’s pen….Our Constitution requires that we charge and prosecute people who are accused of crimes. You cannot sell an indefinite detention scheme by attaching a few due-process baubles and expect that to restore the rule of law. That is bad for America and is not the form of justice we want other nations to emulate”

The WaPo speculates that the motivation for Obama’s executive order is to

preempt legislation supported by some Republicans, which would create a system of indefinite detention not only for some Guantanamo detainees but also for future terrorism suspects seized overseas.

Maybe, but to me it just seems like another in an endless string of broken promises from the guy who seduced the “progressives” with hope ‘n change and then delivered Bush’s policies on steroids.

I’ll end with an extended quote from Spencer Ackerman, who asks some very good questions:

And there’s a lot of unanswered questions, process-wise, that lend themselves to ad hoc solutions. Who will a lawyer be pleading her client’s case to, here? A judge or an administration official? What role will there be for the courts in reviewing this process, if any? How could a detainee’s counsel successfully argue that he no longer poses a threat? According to the official Dafna quotes, the criterion for determining a detainee’s threat level is inescapably a strategic decision. We’d never leave it for a judge to determine whether, say, Yemen is still a terror-exporting nation. So what’s the point of having a lawyer in the process, if this is an exclusively executive-derived process? None of the above should be construed as an endorsement of the administration’s decisionmaking here, but rather a statement of confusion as to just what system it’s in fact creating for its “Fifth Category” of detainee.

Also: why think this executive order will forestall congressional efforts at codifying an indefinite-detention architecture? Lindsey Graham is going to reintroduce his detention bill in the Senate. Buck McKeon is going to reintroduce his detention bill in the House, where chances are better than even that some indefinite detention bill will pass. The Republicans ran on a platform that included indefinite detention and did very well. Obama ran on a platform that included opposition to indefinite detention, won, and then pursued it anyway. Which of these political forces can we say has more fortitude?

Update, 6:58 p.m.: If I understand the Post’s story correctly, the annual review hearing would be in front of a judge, for a kind of re-habeas-ing. But having made the initial decision that the executive has the right to hold Detainee X, what question is the judge to answer, aside from “Is This Person A Th?reat?” which is not a judicial decision. If the question is “Is The Government’s Case Against This Person Valid?” congratulations — you’re in trial territory! Which isn’t what this is. What kind of hybrid is Obama creating?

I just have one more question. Why doesn’t Obama just “follow his bliss” and run as a Republican in 2012? Then maybe we could find a real Democrat to run against him.

19 Comments on “White House Preparing Executive Order on Indefinite Detention”

  1. dakinikat says:

    I’d hate to be the person to go down in history writing that thing. No wonder Karl Rove is doing the dirty work in Sweden. He must be on the payroll again.

    • bostonboomer says:

      That’s the one thing I haven’t read about in detail yet. I did read one Swedish blog that said Rove’s involvement with the government wouldn’t have any effect on the jusdicial system, because they are separate entities in Sweden. I don’t know if that’s true or not. The more I read, the more crazy this whole thing seems.

  2. Minkoff Minx says:

    You know, reading your post BB and Daks post about big pharma right now…I wonder. If the military can hold the non-US citizens down in Guantanamo, what is keeping them from putting Assange down there as well. If he is being portrayed as a terrorist, and the DOJ is trying to figure out a way to prosecute him. Rove would be just the guy for that.

    • bostonboomer says:

      The only things that will keep them from doing that to Assange is if he can get the Brits to protect him or if his powerful friends are able to raise enough of a stink to put the fear into the Obama Administration.

      • Sima says:

        There’s one hope in this. Britain and Australia got their Gitmo detainees out. So… ethical government might, just barely, exist there.

    • Minkoff Minx says:

      Exactly, that is who I was thinking about Dak. If he releases the “secrets” from big pharma and BoA…then I would not be surprised if the pressure gets turned up for Britain to give him to the US. Hey BB, if Britain was controlled enough by money and the Euro banks to release the Pan Am bomber…then what would keep them from giving up Assange.

      • dakinikat says:

        I’m more afraid of him disappearing some place in Saudi Arabia, frankly.

      • bostonboomer says:

        From what I’m reading about Sweden, their government has really gone right in recent years. I don’t know what the Brits will do, but I’ll bet Sweden will hand Assange over to the U.S.

        • dakinikat says:

          did you read the BBC interview: http://news.bbc.co.uk/today/hi/today/newsid_9309000/9309320.stm

          he sat there waiting to be charged for like 5 weeks and no one would charge him with anything …

          Manning hasn’t been charged either … how can you hold people without charging them with anything?

          • bostonboomer says:

            Yes, I’ve spent the past two days reading everything I could find. Just finished reading about the Rove connection. My take is that Assange is egotistical and arrogant, like lots of other famous people. But he does seem to have some core beliefs that he will stand up for, unlike our narcissistic President, who is also highly egotistical and arrogant.

            If Assange did commit sex crimes, then he should be charged and tried. The crimes he would be charged with in Sweden wouldn’t even lead to a jail sentence. So why the overkill? It stinks. Sweden would like to hand him over to the U.S., and who knows what our out-of-control government would do with him?

            But Wikileaks isn’t just one man. If that does happen, I expect the leaks will continue. From what Assange said in the interview, those cables didn’t come from Bradley Manning. They were carried out of the State Department on a disk.

            There are still honest government workers who will risk leaking secrets. Obama doesn’t understand what it is like to be an honest person who would fight for what’s right.

        • Minkoff Minx says:

          BB, I am with you on that assessment of the Swedes. They will give him up, and I would guess that a lot of the pressure now from the US is to get Britain to extradite him to Sweden.

  3. Branjor says:

    Guantanamo isn’t the only place a person who may have committed a criminal offense can be held indefinitely, possibly for life, with no charges, no trial and no conviction. I know that the state of Indiana does it through what they call regular commitment (to a mental institution). It just takes a psychiatrist and a judge to do it. I don’t know if anywhere else does it. It’s been going on for as long as I’m aware.

  4. Sima says:

    When’s the point where we just give it all up, declare ourselves an Empire and start bowing and saying ‘Hail Caesar’ when the President walks into the room.

    Just wondering.

    This news is horrifying. I can’t believe how we’ve sunk as a nation in all our principles, except the ‘greed is good’ one.

    • TheRock says:

      HONK!! HONK!! HONK!!

      Truer words can’t be found. This is the reason WHY terrorists are terrorizing us. These failed public servants enacting crap policy is a direct national security threat, and yet they wonder why we are not loved around the world. The reason I end my posts with Hillary 2012 is mostly as a life target. These issues that Obumbles keeps creating, the many that Bush created, the corruption that exists in our political system, the nonsense going on elsewhere in the world, along with the advancement of the MAJORITY of society is a task that maybe 6 people in this country could successfully preside over and navigate us through, and two of them are named Clinton. If we can just get to 2012, I am gambling heavy right now that the American public will not be so stupid as to continue the efforts of the current failure in office, AND at the same time see the wisdom of NOT going back to the origin of many of the failed policies.

      I am gambling big on just that……

      Hillary 2012

  5. jawbone says:

    BB, nicely put together piece. Thnx — I wasn’t aware he’s working so clearly on cementing the Bush/Cheney justice system.

    • bostonboomer says:

      Thanks! It sure does seem like that was Obama’s job–to make sure the Bush/Cheney legacy lives on until the powers that be can find another “compassionate conservative” to fool the masses. I’m hoping next time it won’t work, but I’m not confident.

  6. hipparchia says:


    “If Assange did commit sex crimes, then he should be charged and tried.”
    so, you would be happier if sweden went ahead and pressed charges and held the trial in absentia?

    “The crimes he would be charged with in Sweden wouldn’t even lead to a jail sentence.”
    if you click on the link labelled ‘extracts from the swedish penal code’ you get this:

    Click to access Chapter%206.pdf