In 2007 and 2008, there was a presidential candidate who argued that (non-battlefield) indefinite detention without charge was an affront to American values. In 2009, there was a White House that brushed aside reports it would issue an executive order governing (non-battlefield) indefinite detention without charge. Coming in 2011, there’s a White House that will issue an executive order governing (non-battlefield*) indefinite detention without charge. Dafna Linzer reports what it will contain:
If signed by President Obama, the new order will provide added review for detainees designated for long-term detention. The order, which is being drafted jointly by White House staff in the National Security council and the White House counsel, will offer detainees in this category a minimal review every six months 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.
Just to clarify something: this is for detainees who lose their habeas cases and are still detained (obviously). Nothing currently compels the administration to release or charge those detainees until there’s an additional court ruling demanding it, and it doesn’t look like one would be on the horizon. (Or am I forgetting some current case? Help me out.) Any law passed by Congress on indefinite detention would likely be more onerous, process-wise, to a detainee than this. Still, note this passage in Dafna’s story:
The executive order aims to create an executive branch review which would occur separately from the court review and would weigh the necessity of the detention, rather than its lawfulness, officials said.
“Perhaps the dangerousness of the detainee’s country of origin could change, or the group that the detainee is affiliated with could cease to exist,” one official explained.
In other words: Combatant Status Review Tribunals/Administrative Review Boards 2.0: Now With Lawyers. And that means the executive is going to have to come up with another series of rules, from scratch, to govern this review process. The courts have accepted — to the dismay of civil libertarians — wide prerogative for the executive in detention. But they’ve taken a dim view of ad-hoc solutions.
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 Threat?” 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?
Update, 9:13 p.m.: The judge in question is probs a military judge, right? #speculation