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.