Journalism in the Public Interest

White House Is Drafting Executive Order to Allow Indefinite Detention; Move Would Bypass Congress

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The Obama administration, fearing a battle with Congress that could stall plans to close Guantanamo, is drafting an executive order that would reassert presidential authority to incarcerate suspected terrorists 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 bypassing 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 U.S. military prison at Guantanamo Bay, Cuba, White House officials are growing increasingly worried that reaching quick agreement with Congress on a new detention system may prove impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January 2010 deadline.

White House spokesman Ben LaBolt did not directly respond to questions about an executive order but said the administration would address the cases of Guantanamo detainees in a manner "consistent with the national security interests of the United States and the interests of justice."

One administration official suggested the White House was already trying to build support for an executive 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. Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.

The Justice Department has declined comment on the prospects for a long-term detention system while internal reviews of Guantanamo detainees are underway. The reviews are expected to be completed by July 21.

In a May speech, President Obama broached the need for a system of long-term detention and suggested that it would include congressional and judicial oversight. "We must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the Executive Branch decide alone," the president said.

Some of Obama's top legal advisers, along with a handful of influential Republican and Democratic lawmakers, have pushed for the creation of a "national security court" to supervise the incarceration of detainees deemed too dangerous to release but who cannot be charged or tried.

But the three senior government officials said the White House has turned away from that option, at least for now, because legislation establishing a special court would be both difficult to pass and likely to fracture Obama's own party. These officials, as well as others interviewed for this story, spoke on the condition of anonymity because they were not authorized to speak publicly about internal deliberations.

In this pool photo, reviewed by the U.S. military, and shot through glass, a guard watches over Guantanamo detainees inside the exercise yard at Camp 5 detention facility at Guantanamo Bay U.S. Naval Base, Cuba, on May 31, 2009. (Brennan Linsley/AFP/Getty Images)On the day Obama took office, 242 men were imprisoned at Guantanamo. In his May speech, the president outlined five strategies the administration would use to deal with them: criminal trials, revamped military tribunals, transfers to other countries, releases and continued detention. (Read our sidebar: "Review of Gitmo Detainees Has Been Slow and Complex.")

Since the inauguration, 11 detainees have been released or transferred, one prisoner committed suicide and one was moved to New York to face terrorism charges in federal court.

Administration officials said the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release. Two officials involved in a Justice Department review of possible prosecutions said the administration is strongly considering criminal charges in federal court for Khaled Sheik Mohammed and three other detainees accused of involvement in the Sept. 11, 2001, attacks on the United States.

The other half, the officials said, present the greatest difficulty because these detainees cannot be prosecuted either in federal court or military commissions. In many cases, the evidence against them is classified, has been provided by foreign intelligence services, or has been tainted by the Bush administration's use of harsh interrogation techniques.

Attorney General Eric Holder agreed with an assessment offered during congressional testimony this month that fewer than 25 percent of the detainees would be charged in criminal courts and that 50 others have been approved for transfer or release. One official said the administration is still hoping that as many as 70 Yemeni citizens will be moved, in stages, into a rehabilitation program in Saudi Arabia.

Three months into the Justice Department's reviews, several officials involved said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees can not be charged or released.

The White House has spent months meeting with key congressional leaders in the hopes of reaching agreement on long-term detention, even as public support for such a plan has wavered as lawmakers have sought to prevent detainees from being transferred to their home states.

Lawyers for the administration are now in negotiations with Sens. Carl Levin, D-Mich., and Lindsey Graham, R-S.C., over separate legislation that would revamp military commissions. A senior Republican staff member said that senators have yet to see "a comprehensive, detailed policy" on long-term detention from the administration.

"They can do it without congressional backing, but I think there would be very strong concerns," the staff member said, adding that "Congress could cut off funding" for any detention system established in the United States.

Concerns are growing among Obama's advisers that Congress may try to assert too much control over the process. Earlier this week, Obama signed an appropriations bill that forces the administration to report to Congress before moving any detainee out of Guantanamo and prevents the White House from using available funds to move detainees onto U.S. soil.

"Legislation could kill Obama's plans," said one government official involved. The official said an executive order could be the best option for the president at this juncture.

Under one White House draft that was being discussed earlier this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system. (Last month, ProPublica explored the key issues around preventive detention.)

Such detainees -- those at Guantanamo and those who may be captured in the future -- would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge.

Officials argue that the plan would give detainees more rights and allow them a better chance to one day end their indefinite incarceration than they have now at Guantanamo.

But some senior Democrats see long-term detention as tantamount to reestablishing the Guantanamo system on U.S. soil. "I think this could be a very big mistake, because of how such a system could be perceived throughout the world," Sen. Russ Feingold, D-Wis., told Holder.

One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaida operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities, or returned to their home country.

"Going forward, unless it's an extraordinary case, you will not see new transfers to the U.S. for indefinite detention," the official said.

Instituting long-term detention through an executive order would leave Obama vulnerable to charges that he is willing to forsake the legislative branch of government, as his predecessor often did. Bush's detention policies suffered successive defeats in the courts in part because they lacked congressional approval and tried to exclude judicial oversight.

"There is no statute prohibiting the president from doing this through executive order and so far courts have not ruled in ways that would bar him from doing so," said Matthew Waxman, who worked on detainee issues at the Defense Department during Bush's first term. But Waxman, who waged an internal battle inside the Bush administration for more congressional cooperation, said the "courts are more likely to defer to the president and legislative branch when they speak with one voice on these issues."

Walid bin Attash (AP Images/Getty Images)Walid bin Attash, who is accused of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.

Little information on bin Attash's case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

"These issues haven't morphed simply because the administration changed," said Juan Zarate, who served as Bush's deputy national security adviser for counterterrorism and is now at the Center for Strategic and International Studies in Washington.

"The challenge for the new administration is how to solve these legal question of preventive detention in a way that is consistent with the Constitution, legitimate in the eyes of the world and doesn't create security loopholes that causes Congress to worry," Zarate said.

Washington Post staff researcher Julie Tate contributed to this report.

Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

Don’t you mean because he was tortured?  Let’s not be dishonest here, even if you are working with the Washington Post.

@JamesF: Not surprising at all. The media as collectively decided that to call it torture is to take a political side on the issue (as if torture was a simple difference between Republicans and Democrats), so no one’s willing to stand up and call a spade a spade.

On another note, isn’t it odd that Obama doesn’t seem the least bit interested in explaining to his base why he’s reneging on this issue? Why preventive detention is so unavoidable and necessary that it involves discarding the Constitution and the laws and embracing Bush’s controversial executive power claims? He’s assuming that the civil libertarians among his supporters are willing to swallow this, but I’m afraid he’s going to wake up one day to a divided base and not enough support to push his agenda, much less get reelected.

Nelson Robison

June 27, 2009, 1:53 p.m.

Campaign promises made, campaign promises broken! So the story goes and never ends.
Obama campaigned on ending the shrub’s policies of illegal detention and torture and yet here we are at the same and now more illegal and more unethical crossroads. It seems that nothing will change and everything will remain the same.
Obama is a one term president in my book. He has done nothing to help the people, the people who got him elected are the ones who are now pulling the strings.
Should there come a time shortly when a viable third party candidate becomes an actuality, I will certainly throw my hat into the ring for that person.
Someone who cannot keep even basic promises, like overturning policies of the previous administration, which have engendered hatred and disgust among the world
community, surely cannot and should not govern the people of the United States of America.

I agree with the 1st 2 comments.  Rachel Maddow have covered this.  To be snide & uppity.  I didn’t vote for Obama because he proved that he’s sold out to the establishment when he sold out to the USA’s power elite, aka establishment, when he was annointed as the Democratic candidate for POTUS in April, 2008.  He was also annointed as POTUS, #44 then.  There is an air of mystery over who or what groups constitute the USA’s power elite.  The USA’s power elite like being anonymous.  If the power elite really bungles things they can’t be easily found or called to account for a failure.  If things get really dangerous the USA’s power elite can designate a scape goat to take the rap.  Those who are the power elite in a de facto sense can, will & do disappear.  They will stop hiding when the coast is clear.  Their scape goat can’t rat them out for 1.  He or she has no idea of what the establishment had done, how it was done & who acted as the establishments agents in planning & execuiting the fiasco or fiascoes. 2.  Urban legend has it that the person(s) designated as the establishment’s scape goat(s) are well compensated for their services to the establishment.
Another urban legend is that when you accept establisment aid, you have sold yourself to the establishment & you are the establisment’s property & slave.  You will never do anything with the authorization of the establishment.  Nothing which will harm the establishment will happen while Obama is in the White House.  If Obama were to offend the establishment, Pres Obama would experience serious adverse consequences for offending the establishment.  That’s what we sympathizers who support Trotskyist Marxism are led to believe &, most importantly, are allowed to believe. 
That may be called solidarity, right thinking or honoring party discipline & tradition.  It isn’t wise to ignore what the party says & asks of you.  There is a rich body of literature about what happens to those who abandon any sort of Marxism.  It is blood curdling & it’s meant to be blood curdling.  Some of us are 4th or 5th generation Marxists, aka Red Diaper babies.  We know how to spot it when we’re being followed as soon as we say our 1st words & take our 1st faltering steps.  Read an anti-communist book from the 1940’s-50’s to learn the curriculum we learn when we enter a Marxist environment.
Enough of the biography.  I returned to my Marxist roots to vote for the Socialist Equity Party’s candidates for VP & POTUS in 2008.  Maybe Jerry White & Bill Van Auken had no chance of going to the White House in 2009, but they hadn’t sold out to & wouldn’t sell out to the USA’s power elite of unregenerate capatilists either.
You are fed Marxism with your 1st bite of solid food if you are raised in a Marxist environment.  That sticks with you even when you are taken from a Marxist environment.  Those who attempted to teach me of capitalist ways were surprised how quickly I absorbed their lessons & repeated their capitalist lessons back to them.  I had been taught to do that so that I could survive till Marxism triumphed.
I was taught to see any POTUS as a capatilast lackey, slave & running dog.
I now see Pres Obama as an evil clone of W.  Obama is going to relentlessly try to make the authority to use the anti-democratic scheme of preventive detention & other arbitrary acts by ‘security’ “experts”, aka Nazi bureaucrats a part of US law.  Just as W had neo-con support & operatives, Obama has neo or proto-Nazi support & operatives.
I’m not a bit surprised at what Obama is trying to do.  I learned of Obama’s kind while my parents or other care-givers took me to meetings.  Capitalism isn’t a racial thing; it’s a mental thing.  I’ve got a Marxist psyche.  Obama has a capitalist psyche; he made a concerted effort to develop a capitalist psyche.  Now Obama may also have a deeply hidden Marxist psyche too, but he won’t reveal tha till the time is right.
Yes, that is errant nonsense; isn’t it?  But, no, Barrack Obama wouldn’t use Marxist tactics to hide in plain sight by becoming an a advocate, a very strong advocate of capitalism; would he?  Stick around to see what happens.
I plan to quietly smile since I’m retired.  Something is bound to kill me sometime.  Why worry?

I lay this entire Cluster at the Feet of the Bushies who resorted to torture and the spineless, unethical idiots we call collectively call ‘Congress’.
Oh wouldn’t they all love it if this became Obama’s problem! But,regardless of what Cheney fanticized about and th ecowards in both Houses would like US to think, This is NOT a Monarchy! There are 3 Branches to this Gov’tal Body and 2 have been making bad decisions and being derelict in their Duties for the last 8+ yrs!
Since the Bushies committed the War Crime of Torture, The US has effectively been deemed Prejudical. These Detainees who have been tortured should be tried by a International court. Not only to face the charges of crimes they may have committed, but also to to be a witness for the prosecution of their alleged abusers too.The Bushies intentionally made every facet of our Gov’t and their agencies complicity in these War Crimes- From the Office of the Presidency, both Houses, SCOTUS, the Military, The CIA,The FBI, The DOJ…Essentially it is not just the Bush admin, nor just the Congress on Trial, It is US and our adherence to International Laws. Our Form of Gov’t Broke Down, showing there is no Checks and Balances,thus our Judicial System collapsed and all the ‘Moral Authority’ We as a Country had earned over our short existence.
In fact it is time we but some Teeth and Balls back on our SCOTUS, No legislation nor Executive order/action can be undertaken without first being deemed Constitutional and within the confines of International law, FIRST by SCOTUS.Relegating SCOTUS to cleaning up easily avoidable mess not only negates it’s role as the Third Branch of Gov’t- It allows such ciminal acts to be committed until someone has the means and ways to bring it to their attention. That is not a Third Branch of Gov’t, that’s Maid Service.Then when such things as acts of Torture are discovered to have been ‘legitimized’ by SCOTUS, it is those 9 who must face the International court of their Judicial Peers- None of this shell game of Responibility- The Exec Branch did it, The DOJ Ok’ed it, Congress was briefed, The CIA lied- blah blah blah.

“The challenge for the new administration is how to solve these legal question of preventive detention in a way that is consistent with the Constitution, legitimate in the eyes of the world and doesn’t create security loopholes that causes Congress to worry,” Zarate said. And Mr. Zarate, ‘a magna cum laude graduate of Harvard University and a cum laude graduate of the Harvard Law School’ (wikkipedia), would explain to us the complexities of ‘PREVENTIVE DETENTION’ and the concept’s place of residence within the Bill of Rights when he seems incapable of speaking proper English.  Yeah, I am sooo glad I got conned into attending Vietnam for 20 months under the auspices of protecting Democracy so individuals of Mr. Yoo’s and Zarate’s acumen could practice their intellectual sleights of hand.

This article is part of an ongoing investigation:

The Detention Dilemma

The government remains uncertain what to do with its prisoners at Guantanamo Bay.

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