But other observers were more cautious. Prof. David M. Glazier of the Loyola Law School in Los Angeles said, "It is hard to judge the legality of the Obama Administration proposal because of the vagueness in the reporting. The real legal flaw with Guantanamo is not the concept of indefinite detention, but rather the failure to conform it to the law of war. Confinement in prison cells, coercive interrogation, and even routine shackling of prisoners all violate the law of war."
According to The Washington Post, "Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order." Such an order could be rescinded and would not block later efforts to write legislation.
But CCR's Ratner disagrees. He said, " If the last eight years have taught us anything, it's that executive overreach, left to continue unchecked for many years, has a tendency to harden into precedent."
Nor is this option is not without political risk for Obama; it could anger lawmakers who could see it as an "end-run" around Congressional authority.
Among the few lawmakers publicly opposed to indefinite detention is Wisconsin Democratic Senator Russ Feingold. In a letter to President Obama, he wrote that indefinite detention poses a risk "establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security."
In a May speech at the National Archives, Obama said he was considering indefinite detention for some prisoners. He
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," he said.
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.
On the day Obama took office, 242 men were imprisoned at Guantanamo. 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 told The Washington Post that the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release.
The other half of the cases, the officials said, present the greatest difficulty. Attorney General Eric H. Holder Jr. 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.
In strictly political terms, Obama is presented with a Hobbesian
choice: The Left of his party is already disillusioned by some of the actions the president has taken: invoking the State Secrets Doctrine, arguing that prisoners at Bagram Air Base in Afghanistan have no rights, refusing to comply with court orders concerning the release of the torture photos, delaying the declassification of the CIA Inspector General's 2004 report, distancing himself from any independent inquiry into the misdeeds of his predecessors, and so forth.
If he opts for "permanent detention" or, as the Administration likes to put it, "preventive detention," a large slice of his base constituency will go ballistic. So, if he were a cynic, his political calculus might be: "Where can they go?" John McCain?
But if he decides to travel the path of human rights advocates and most of his fellow Constitutional lawyers, he will face the wrath of a Congress - in both parties and in both Houses - whose governing principle is reelection and whose time horizon extends no further
than 2010 mid-terms. And these are the people he needs to transform
the "change we can believe in" into law. But not in their backyards!
Not an easy choice. In order to govern, a president has to win. Is this tug-of-war winnable? How? You tell me - I'd love to hear from you, gentle readers.
Meanwhile, maybe we should all be happy we're not the president.
1 | 2
