Huge news from Dafna Linzer and Peter Finn. The Obama administration fears that congressional prerogative is going to get in the way of closing Guantanamo by January. So its answer is to cut Congress out of the decision-making and set up a system of "prolonged detention" for an estimated half of Guantanamo detainees it believes can be neither charged nor responsibly released. My initial read of the Linzer/Finn piece is that what the administration envisions is ratherclose to what Benjamin Wittes is proposing and which my colleague Daphne Eviatar critiqued. [See update below.] (Marcy and Glenn: I defer to your legal minds here.)
Many, many things are curious here, including how much process the unilaterally-created detention system would allow. Finn and Linzer rightfully observe that the logic here is the logic of the Bush administration. There’s not much administration effort, judging from the piece, put into explaining why a detainee can’t be charged with a crime. And then there’s this absolutely bizarre claim:
"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 Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either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.
What? What civil liberties organization actually encouraged the administration to set up a system of "prolonged detention" — the less euphemistic term would be indefinite detention — in the first place; let alone urged the administration to do it without congressional approval?
Update: Zach Roth at TPM reports that the Center for Constitutional Rights certainly doesn’t approve of the idea.
Update 2: CCR representatives say that in a recent White House meeting, they conveyed to administration officials that "any prolonged detention scheme was unacceptable, no matter how it was dressed."
Similar sentiments come from the ACLU, whose executive director, Anthony Romero, has released this statement:
This is not change – this is more of the same. If President Obama issues an executive order authorizing indefinite detention, he’ll be repeating the same mistakes of George Bush, and his policies will be destined to fail as were his predecessor’s. How justice is served in America should not be an open question in a country where we have a rule of law and a time-tested criminal justice system. Throwing people into prison without charge, conviction or providing them with a trial is about as un-American as you can get. While President Obama might be experiencing difficulty with Congress when it comes to implementing his decision to close Guantánamo, the answer is not to issue an executive order authorizing a system which is unconstitutional and counter to the most fundamental American values.
However, Kate Martin of the Center for National Security Policy thinks that contrary to my insta-read above, the executive order reported in Linzer and Finn’s piece doesn’t sound like the Wittes proposal. She 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, 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. Martin has expressed her organization’s longstanding perspective on detainee matters to the administration’s detentions task force.
Update 3: The above reference to Wittes was pretty poorly phrased. I should have written that it seemed like the administration may embrace his substantive proposals for detention. As it reads, my sentence implies that Wittes embraces an executive order as a vehicle to change the rules about detention, when his proposal is obviously a piece of legislation.