Is Obama going to release an order on preventive detention? Last Friday, that was the news.
Zachary Roth in TPM
Anonymous trial balloon articles like this one are difficult to comment on because it’s obviously designed to announce that a certain policy is being considered before it’s actually written, and so none of the key details is known. Would Obama’s new detention powers apply only to current “War on Terror” prisoners at places like Guantanamo and Bagram, or would they also apply to future, not-yet-abducted detainees as well? Would these powers apply to detainees picked up anywhere in the world, far away from “war zones”? Would there be any judicial review or other meaningful oversight provisions so that — even in theory — this was something other than the unilateral, unchecked presidential power to detain indefinitely without charges? None of these important details is known (though the article notes that, under one White House proposal, “ongoing detention would be subject to annual presidential review“; the Emperor, sitting alone, will decree once a year whether they must remain in a cage).
This specific article is even worse than the usual one of its type, since it’s particularly uncritical in passing along administration claims without any skepticism (I addressed each of the “justifications” for Obama’s preventive detention proposal — Obama has to do this because of what Bush did; we can’t get convictions because of Bush’s torture; it’s common in War to do things like this, etc. etc. — here). Worse, the article does not provide any information about the Obama officials whose mission the reporters are dutifully carrying out, so there’s no way to assess their motives.
Via Greenwald, Rachel Maddow:
Obama has essentially endorsed the detention policies of George Bush without the courtesy of apologizing for slandering him over the last two and a half years. Obama and his allies screeched endlessly about indefinite detentions, and not just in Gitmo, either. They specifically railed against the holding of terrorists without access to civil courts in military detention facilities around the world, specifically Bagram, but in general as well. Not even six months into his term of office, Obama realized that Bush had it right all along.
We’re still unsure what this policy will look like. Daphne Eviatar in the Washington Independent:
It’s not clear where the Obama administration will come down in this debate, and administration officials have insisted that no decision has yet been made. On Monday, White House spokesman Robert Gibbs assured reporters that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people.” But he did not rule out reliance on a preventive detention system based on some other authority — which could be the laws of war, or an act of Congress.
It was a blind quote hitting the civil-libertarian solar plexus. Bad enough that, as ProPublica’s Dafna Linzer and The Washington Post’s Peter Finn reported late on Friday afternoon, the Obama administration was readying an executive order for a system for preventive detention in terrorism cases. President Obama himself had indicated in a May speech at the National Archives that he wanted to seek legislation toward the same idea. But an administration official told the reporters that those same opponents of preventive detention had given the president cover to pursue it: “Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order.”
As it happens, White House officials sought to walk the story back, with officials saying that the administration wasn’t drafting an executive order and was unlikely to issue one, as press secretary Robert Gibbs said Monday. But representatives of civil liberties groups were still stunned to see the quote. At a meeting with the administration’s task force on detentions policy earlier this month, most of the major civil liberties groups explicitly urged the administration to instead either charge Guantanamo Bay detainees and future terrorism captives with crimes in federal court or release them. Now, with the prospect of a new administration creating a regimen for holding detainees for an unbounded period without facing charges — a major target for civil libertarian fights with the Bush administration — on the horizon, several groups that hailed Obama’s election are vowing to fight the proposal.
My purpose in these pages is not to convince the reader that a new administrative detention regime is necessary, nor do I mean to offer a specific legislative roadmap towards one. I have argued elsewhere for “a durable, long-term framework for handling detainees—one that lets [the United States government] hold the most dangerous individuals [it captures] and collect intelligence from them (including through lawful interrogation), but also (unlike Guantanamo Bay) has rules and procedures that are politically, legally and diplomatically sustainable.” Other papers in this series argue for various approaches to preventive detention. In this paper, rather, I aim to examine what seem at first like simple questions underlying the discussion of administrative detention and the possible need for new laws: in combating terrorism, why administratively detain, and detain whom?
The answers to these questions seem obvious at first. We should detain individuals to prevent terrorism and, to that end, we should detain terrorists. And with those basic ideas apparently settled, the administrative detention debate tends to jump quickly to the question of how to detain: What procedural protections should we afford suspects? What rights should we grant them to challenge evidence proffered against them? What kinds of officials will adjudicate cases? Those advocating new administrative detention laws generally call for robust judicial review of what have largely been executive-only detention decisions since the early days of the Bush Administration’s Global War on Terror—perhaps by a new “national security court” charged with overseeing a process that includes adversarial process and meaningful assistance of lawyers. And at that point, the discussion moves just as quickly to questions of institutional design, and such procedural details as evidentiary rules, the type of judges who will hear these cases, detainee access to counsel, and counsel’s own access to classified information. Administration detention critics, too, focus heavily on the procedural dynamics of administrative detention proposals: how would detention decision-making and, for that matter, the standards and rules governing those decisions, deviate from normal criminal justice rules?
Adam Sewer looks at a different paper from Brookings:
There was a huge newsdump last week, with The Washington Post reporting that President Obama intends to circumvent Congress and reassert indefinite detention authority by executive order. At the same time, the Brookings Institution released a paper by Ben Wittes and Colleen A. Peppard giving the possible outlines of a preventive detention statute. Although I didn’t post about it, I initially assumed that the administration’s move would be along the lines of what Wittes is proposing.
That isn’t the case. I interviewed Wittes at length this weekend for a feature I’m doing for the print edition, and I had a chance to look over the whole proposal. Wittes told me personally that he thought Obama re-asserting–as Bush did–the inherent authority to detain terrorists suspects indefinitely would be “a disaster.”
The Wittes proposal is not likely to make any civil libertarians happy. But unlike the administration’s move–if the Post story is accurate–it does propose some meaningful constraints on the indefinite detention power, which up till now we’ve seen being used arbitrarily except where the courts intervene. The Wittes proposal would set up a FISA-like system, where terrorist suspects could be detained for 14 days without court oversight, but their cases would be subject to judicial review every six months afterward to determine if the suspect should remain detained, according to a “three pronged test.” The individual would have to be: “(1) an agent of a foreign power, if (2) that power is one against which Congress has authorized the use of force, and if (3) the actions of the covered individual in his capacity as an agent of the foreign power pose a danger both to any person and to the interests of the United States.” The president would also have to submit a list of groups to Congress every few months that it wants covered by the AUMF, and whose members can be subject to preventive detention. The evidence threshold for detaining someone would be lower than that used in criminal trials. There’s more to the proposal, but I won’t try to explain it all in one blog post.
UPDATE: Marc Ambinder
UPDATE #2: Glenn Greenwald:
After yesterday, we have to add an even more extreme prong to this policy: if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we’ll still just keep them in prison anyway by presidential decree.
Via Greenwald, Spencer Ackerman
I understand and respect the president’s decision to disregard his left-wing critics and embrace the same policies of indefinite detention and denial of due process that made the Bush-Cheney administration so effective in preventing another terror attack. I support those policies because as illegal enemy combatants, terrorists have no right to due process. But, as Glenn Greenwald points out, there is something Orwellian about this administration’s attempt to have it both ways — to get the credit for putting detainees on trial only to disregard the outcome if they don’t like the verdict. Obviously the Bush administration would have done the same if they thought for a second that they could get away with it. But even the Bush OLC wouldn’t have dared suggest detaining individuals who had been acquitted on all charges.
Not via Greenwald, Dday
So the Bush administration simply detained individuals it deemed a threat to national security. It was unable to resolve this difficult question of how to proceed with detainees who were too dangerous to release but against whom the evidence was, for any number of totally legitimate reasons, not likely to secure a conviction. The Obama administration has worked out a brilliant solution: show trials whose outcomes will not be predetermined even if the sentencing is.