Obama Courts Disaster With New Detention Plan

The Obama administration is rushing towards a unilateral plan to imprison people without trial, according to a huge, new joint article from the Washington Post and ProPublica. The proposal would completely cut Congress out of the process by using an executive order to essentially bring Gitmo stateside:

The Obama administration, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, is drafting an executive order that would reassert presidential authority to incarcerate terrorism suspects 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.

That is a terrible idea. For its part, the White House dispatched aides to push back. From the article:

White House spokesman Ben LaBolt said there is no executive order and that the administration has not decided whether to issue one. But one administration official suggested that the White House was already trying to build support.

After publication, another Obama official issued an odd denial to The Atlantic's Marc Ambinder:

An administration official, speaking on the condition of anonymity, flatly denied the report to me. "There is no executive order. There just isn't one." (emphasis added)

First, there is no legitimate reason for a government official to claim anonymity here. It simply echoes the official line from the article, which is likely to be Robert Gibbs' line when reporters press the issue in Monday's briefing.

Second, the response is a classic dodge -- there is no executive order now, and no decision has been made. Of course, the article is not reporting that an order has already been issued. The news is that Obama officials are preparing to advance President Bush's Gitmo detention regime through a unilateral executive order soon, cutting out Congress, and thus any democratic accountability, while extending a controversial, unpopular policy.

Even though Obama's National Archives speech asserted the importance of working with other branches of government. ("We must recognize that these detention policies cannot be unbounded," he said, "They can't be based simply on what I or the executive branch decide alone.")

Even though the Bush administration already tried this unilateral tack, only to have its system invalidated by the Supreme Court precisely because Congress was shut out. (Hamdan v. Rumsfeld.)

And even though decades of legal precedent show, as Professor/President Obama knows, that the executive branch operates at the nadir of its constitutional power when acting without the cooperation of Congress, even in the national security arena. (A point most famously established for President Truman in the Youngstown case.)

Obama's argument for preventive detention "violates basic American values and is likely unconstitutional," warned Sen. Russ Feingold in a recent letter to the President, cautioning that detention without trial "is a hallmark of abusive systems that we have historically criticized around the world." Advancing such a controversial precedent on American soil, without the participation of Congress or the American people, would be disastrous.

UPDATE: The AP reports that two administration officials said Obama is considering an executive order for preventive detention. The article includes responses from the ACLU and CCR, two human rights organizations that have battled the Bush and Obama administrations:

Christopher Anders, [from] the American Civil Liberties Union Washington office, says the organization strongly opposes any plans for indefinite detention of prisoners."We're saying it shouldn't be done at all," he said Friday.... Civil rights advocates and constitutional scholars accused Obama of parroting [Bush's] detention policies. "Prolonged imprisonment without trial is exactly the Guantanamo system that the president promised to shut down,' Shayana Kadidal, a senior attorney for the Center for Constitutional Rights, said in a statement Friday, [adding,] "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."

Comments (56)

1. Are there two Obamas?

   On some issues, especially foreign policy, Obama acts like the son of Bush.

   On other issues, especially domestic issues like healthcare and environment, he acts like a black Ralph Nader.

   Interesting times we live in.

   Posted by antisocialist at 06/26/2009 @ 7:03pm

2. The disappointments continue.

   And continue.

   At this rate, the Dems may find many primary challenges in '10, and the Obama '12 campaign will be abandoned by many if not most core supporters from '08.

   Too many disappointments = disaster.

   Posted by sloper at 06/26/2009 @ 8:20pm

3. I predict this is a wash. Whether a bargaining chip or some nod to the 'cons, with a compromise brewing - disappoint to both extremes as usual, but nothing like what 's claimed here, this little scare will wash away. Maybe with more exposure, maybe without, but it will wash away.

   Obama's got game and it's getting to be pretty consistent: Not quite what sourpuss Lindsey Graham wants on sanctions or threats, not sending well wishes to Ahmadinejad either. Not single payer, not giving up public option. Sotomayor's a walking talking example of same. You can find the same across the spectrum, on Israel/Palestine, on bail-outs for GM, on and on.

   Posted by winyahn at 06/26/2009 @ 8:54pm

4. What's next for Gitmo? Find out at http://gitmotourism.blogspot.com

   Posted by thincaboutit at 06/26/2009 @ 9:34pm

5. If Congress would have agreed to a method for closing down Gitmo this probably wouldn't have happened. But since Congress isn't going to give him the funding to shut it down properly these are the things that occur. What did we suspect would happen? It was either this or leave Gitmo open.

   Posted by Cccomfo1 at 06/26/2009 @ 10:04pm

6. Wow. I have to say...Obama is definitely playing with fire. Though it would be worth fact-checking and making sure that this executive order actually was in play (which the article didn't really establish, I don't think), this executive order strikes me as extremely dangerous and almost certainly outside the authority Obama can or should exercise. Though the commander-in-chief power probably can't solely exist abroad in an age of nonstate actors, I don't think he has the power to do this without Congress backing him up. And even if he can, I don't think he should.

   Posted by Thrawn at 06/26/2009 @ 10:13pm

7. And even if he can, I don't think he should.

   Posted by Thrawn at 06/26/2009 @ 10:13pm

   I continue to support leaving some of these bad guys at Gitmo until they die.

   So I do support Obama if he really is taking this route.

   In time of war, do you also believe that Obama needs authority from Congress to hold POW's indefinitely? And if so, where do you find that authority?

   Posted by antisocialist at 06/26/2009 @ 10:17pm

8. Too many disappointments = disaster.

   Posted by sloper at 06/26/2009 @ 8:20pm

   "China's central bank renewed its call for a new global currency and said the International Monetary Fund should manage more of members' foreign-exchange reserves, triggering a decline in the U.S. dollar.

   "To avoid the inherent deficiencies of using sovereign currencies for reserves, there's a need to create an international reserve currency that's delinked from sovereign nations," the People's Bank of China said in its 2008 review released today. The IMF should expand the functions of its unit of account, Special Drawing Rights, the report said.

   The restatement of Governor Zhou Xiaochuan's proposal in March added to speculation that China will diversify its currency reserves, the world's largest at more than $1.95 trillion. Chinese investors, the biggest foreign owners of U.S. Treasuries, reduced holdings in April after Premier Wen Jiabao expressed concern about the value of dollar assets...."

   Posted by frosty zoom at 06/26/2009 @ 10:58pm

9. I continue to support leaving some of these bad guys at Gitmo until they die.

   Posted by antisocialist at 06/26/2009 @ 10:17pm

   just give 'em their fair trial......

   isn't that what god does?

   Posted by frosty zoom at 06/26/2009 @ 11:00pm

10. <i>Posted by antisocialist at 06/26/2009 @ 10:17pm </i>

    The "terrorism suspect" category doesn't encompass all POW's. The only people that the President could possibly have the authority to unilaterally detain indefinitely are fighters actually captured on the battlefield. And even then it's not indefinite, unless you think that we're in a state of war until every last terrorist organization is hunted down and eliminated. Which means a perpetual state of war.

    And the funny thing is...if the President doesn't have the authority AND Congress doesn't have the authority...then the federal government can't do it. The only reason the point about Congress matters is that it would set up a dichotomy. Either the President can do it or no one can. That means that the only relevant question is whether the President can't do it. He certainly doesn't get that power just because you're not happy with the alternative.

    Posted by Thrawn at 06/27/2009 @ 12:32am

11. A fool and the folly of his campaign lies are soon parted by the reality of credible threats to national security and the lives of American servicemen!

    Posted by BigPasture at 06/27/2009 @ 01:22am

12. I think there is a group of people of the right political and military complex that has succeeded in scaring Obama telling him who knows what top secrets that common Joe should know altogether. Yes, Obama has the moral duty of share this with the public.

    When will they understand that our real moral - and also political - strength is in our respect for freedom and individual rights and justice for all?

    Set the people free. Make their government or host countries accountable for their conduct. Spy them if you wish to. But best of all promote a new face of America that values exactly the same our Israeli brothers as our Arab brothers.

    Posted by Frank42 at 06/27/2009 @ 02:14am

13. How to figure out Obama's next move? It's always the same... maintain the status quo. Whatever it is, keep it trucking. With a small democratic aerofoil at the back to keep it on track.

    Posted by hidflect at 06/27/2009 @ 04:26am

14. Posted by antisocialist at 06/26/2009 @ 10:17pm

    This is interesting to me.

    On one hand Larry uses Castros regime as a clarion call against socialism. on the other he wants to use Castros methods to make himself fell safe.

    What could be more totalitarian socialist than keeping people indefinitely without charges or trials? Is that what the "original intent" of the Founding Fathers was? Or is that more of a living, growing Constitution?

    As a matter of fact, most of Larrys "enemies", Chavez, Achmidinijaed, S. American Marxists etc use this technique to control their population.

    Posted by crabwalk at 06/27/2009 @ 08:20am

15. Posted by Thrawn at 06/27/2009 @ 12:32am | ignore this person | warn this person

    check your constitution. congress has jurisdiction over prisoners of war captured on land and on sea.

    Posted by emile duBois at 06/27/2009 @ 09:07am

16. Primary Rule:

    It's never Obama's fault- it's the Congress, it's George W, it's Chris Dodd, it's Nancy Pelosi, it's Harry Reid, it's "just the way things work in Washington" etc. etc. -How incredible that the fan club still refuses to deal with the reality- Obama is just a Chicago politician-we've been had.

    $750,000 in marketing and branding works- The American Idol has been chosen and folks like The Nation's Vanden Heuvel fell for it hook, line and sinker. One would have thought a reality based universe was what we, the elite, were longing for. Obama promised everything to everybody- what's the old rule- If it sounds too good to be true it probably is? Maybe all the smartie pants will learn a lesson from this- unfortunately we have to walk down the same path together. It was mostly "just words" and all we're left with is "hope"- I want my constitution back.

    Posted by veritas3 at 06/27/2009 @ 10:13am

17. veritas3

    the choice was between Obama and McCain. I think the american people made the right choice.

    Posted by emile duBois at 06/27/2009 @ 10:20am

18. <i>Posted by emile duBois at 06/27/2009 @ 09:07am </i>

    Ah. That works nicely too. My only argument was that the President doesn't get to claim exclusive JD over POW's; this meshes rather nicely with that.

    Posted by Thrawn at 06/27/2009 @ 11:01am

19. Meet the new boss, leftwing saps.

    Posted by jonny_amplesack at 06/27/2009 @ 11:57am

20. Posted by jonny_amplesack at 06/27/2009 @ 11:57am | ignore this person | warn this person

    you lost the election, right wing sap.

    Posted by emile duBois at 06/27/2009 @ 12:24pm

21. Posted by jonny_amplesack at 06/27/2009 @ 11:57am | ignore this person | warn this person

    you lost the election, right wing sap.

    Posted by emile duBois at 06/27/2009 @ 12:24pm

    We all lost.

    Posted by antisocialist at 06/27/2009 @ 1:33pm

22. We all lost.

    Posted by antisocialist at 06/27/2009 @ 1:33pm

    In your eyes only, in your eyes only.

    Posted by Cccomfo1 at 06/27/2009 @ 1:37pm

23. We all lost.

    Posted by antisocialist at 06/27/2009 @ 1:33pm

    We all lost, when GW was elected and spiked this country like a football straight into the ground.

    Posted by Cccomfo1 at 06/27/2009 @ 1:37pm

24. GW was elected? news to me. why has no one mentioned this before?

    Posted by emile duBois at 06/27/2009 @ 1:40pm

25. In your eyes only, in your eyes only.

    Posted by Cccomfo1 at 06/27/2009 @ 1:37pm

    Let's see:

    I just a few months in office, he has spent (or committed to spending) more than all previous presidents before him COMBINED.

    He has quadrupled the deficit

    We have trillion dollar deficits projected for decades to come.

    He is seeking to implement the largest tax increases in our nation's history.

    He has taken over 2 of the 3 US automakers.

    If these things were attributed to Bush or McCain, you would be outraged; but since it is at the hands of a liberal president, you have no problem with it.

    Posted by antisocialist at 06/27/2009 @ 1:59pm

26. If these things were attributed to Bush or McCain, you would be outraged; but since it is at the hands of a liberal president, you have no problem with it.

    Posted by antisocialist at 06/27/2009 @ 1:59pm

    Actually no I wouldn't, because I stop to examine WHY he has done these things. If McCain had done all of these things for the same reason he would be fine with it.

    Posted by Cccomfo1 at 06/27/2009 @ 2:03pm

27. If these things were attributed to Bush or McCain, you would be outraged; but since it is at the hands of a liberal president, you have no problem with it.

    Posted by antisocialist at 06/27/2009 @ 1:59pm

    It's your own stupid bigotry that doesn't allow you to see that fact though. You think everyone thinks like you.

    Posted by Cccomfo1 at 06/27/2009 @ 2:03pm

28. <i>Posted by Cccomfo1 at 06/27/2009 @ 2:03pm </i>

    Good reasons aren't good enough; you can make bad policy from the best reasons imaginable. In fact, the policy itself is correct or incorrect independent of the motives behind it. So no...the reasoning behind it wouldn't be the determining factor.

    Posted by Thrawn at 06/27/2009 @ 2:10pm

29. Good reasons aren't good enough; you can make bad policy from the best reasons imaginable. In fact, the policy itself is correct or incorrect independent of the motives behind it. So no...the reasoning behind it wouldn't be the determining factor.

    Posted by Thrawn at 06/27/2009 @ 2:10pm

    This is true. But I see the policy as a reaction to a growing threat. If there had been no response I think we would be much worse off. Sometimes it's a choice between the lesser of two evils.

    Posted by Cccomfo1 at 06/27/2009 @ 2:33pm

30. Posted by antisocialist at 06/27/2009 @ 1:59pm

    It's your own stupid bigotry that doesn't allow you to see that fact though. You think everyone thinks like you.

    Posted by Cccomfo1 at 06/27/2009 @ 2:03pm

    CCC,

    You do know anti has adoptive children of color and I believe, a wife of color as well. Folks on this blog longer than you, all knows this...and a young punk like you, dares to accuse a far better man than you, of bigotry?

    Posted by Happy at 06/27/2009 @ 3:20pm

31. You do know anti has adoptive children of color and I believe, a wife of color as well. Folks on this blog longer than you, all knows this...and a young punk like you, dares to accuse a far better man than you, of bigotry?

    Posted by Happy at 06/27/2009 @ 3:20pm

    I was talking about race Happy. Pick up a dictionary.

    bigotry |ˈbigətrē| noun bigoted attitudes; intolerance toward those who hold different opinions from oneself

    I was talking about his dislike of anyone liberal. I know he has a wife of color and children of color. Maybe you should understand the English language before you try insulting people.

    Posted by Cccomfo1 at 06/27/2009 @ 3:25pm

32. wasn't*

    Posted by Cccomfo1 at 06/27/2009 @ 3:25pm

33. You do know anti has adoptive children of color and I believe, a wife of color as well. Folks on this blog longer than you, all knows this...and a young punk like you, dares to accuse a far better man than you, of bigotry?

    Posted by Happy at 06/27/2009 @ 3:20pm

    And how do you measure the quality of one person against another Happy?

    Posted by Cccomfo1 at 06/27/2009 @ 3:26pm

34. <i>Posted by Cccomfo1 at 06/27/2009 @ 2:33pm </i>

    That's still only a start. Just because one extreme is bad doesn't mean that the other one is correct.

    Posted by Thrawn at 06/27/2009 @ 3:43pm

35. That's still only a start. Just because one extreme is bad doesn't mean that the other one is correct.

    Posted by Thrawn at 06/27/2009 @ 3:43pm

    I absolutely agree. I believe in finding somewhere in the center. But sometimes to undo extreme damage you go far to one end then work your way back to center as the damage abates. I think it's been proven the more extreme the damage the more extreme the response has to be before you can return to center. You can't respond to hemorrhaging with a band-aid.

    Posted by Cccomfo1 at 06/27/2009 @ 3:52pm

36. When all the wailing and shouting is done, the best place for the terrorists is...Gitmo.

    Failing that of course, the alternate plan is to send them to super-max in the states but super-max is full. What to do, what to do...my oh my... Well, I have a solution: Do a prisoner exchange. Move all the Gitmo prisoners to super-max and an equal number of normal prisoners from super-max to Gitmo. Viola! Gitmo no longer has the political stigma of having terrorists and super-max gets the newest favorite class of the democrats to coddle.

    Posted by pyeatte at 06/27/2009 @ 5:47pm

37. But best of all promote a new face of America that values exactly the same our Israeli brothers as our Arab brothers.

    Posted by Frank42 at 06/27/2009 @ 02:14am | ignore this person | warn this person

    I missed the punchline on that joke!

    Posted by BigPasture at 06/28/2009 @ 01:40am

38. Posted by pyeatte at 06/27/2009 @ 5:47pm

    How do you know they are terrorists?

    More than 2/3 of "the worst" were released.

    How many innocent people would you hold forever just so you can feel a false sense of security? Is that what Jefferson and Adams were about?

    Would you feel better if Iran had kept the US journalist in prison for a decade? She got a "trial". How about N. Korea? Should they hold the US journalists because they work for Al Gore? Is China on stable ground rounding up dissenters and sending them to work camps? They are a threat to the government, after all.

    Same with Castro's jails. You are fine with them, as the people in them are "perceived" threats to that country?

    pyatte, do you want to keep company with Iran, N. Korea and Cuba? Gee, I thought you cons were against those dictatorships. I guess all that bloviating about how despicable those countries are was just cover.

    Why do you allow fear to rule your life?

    Now the cons are NIMBYS, another class of people the Hypocrite Party used to mock. We have terrorists in jails now, in this country. Not one has escaped. Terry Nichols is safe were he is. So is the man that attacked a Christian doctor in his place of worship.

    Posted by crabwalk at 06/28/2009 @ 07:41am

39. "On other issues, especially domestic issues like healthcare and environment, he acts like a black Ralph Nader."

    statement of the month?

    anyone who thinks obama is "liberal" on healthcare and the environment is crazy.

    Posted by darladoon at 06/28/2009 @ 09:59am

40. For 40+ years, so many Americans have been "homesick" for John & Robt Kennedy. Obama seemed like a coming home at last, a refuge for a country that was for years increasingly betraying its own proclaimed ideals at home, while failing again & again in imperial campaigns of slaughter abroad.

    But Obama is turning out not to that longed for homecoming & in its place a bewildering meaningless is now seeping into the national spirit. A very dangerous condition, vulnerable to some pretty mean infections.

    Posted by sloper at 06/28/2009 @ 11:35am

41. * a bewildering meaninglessness

    Posted by sloper at 06/28/2009 @ 11:36am

42. I don't think there's anything Obama can do to destroy this country faster than he's already doing. This is a very dangerous man. I voted for him because I wanted to believe his jive, but the guy is flat freaking evil.

    Posted by DejaVu at 06/28/2009 @ 12:11pm

43. ....This is a very dangerous man. I voted for him because I wanted to believe his jive, but the guy is flat freaking evil.

    Posted by DejaVu at 06/28/2009 @ 12:11pm

    Trust.....but, did you verify? Your bad!

    Posted by Happy at 06/28/2009 @ 1:47pm

44. I don't know if one can accuse Magic as "evil", yet!

    Even if to many of us, the results so far, and worse to come in further distorting, thus killing, our growth-based economy, will be no different than if he evilly planned it all....as the Muslim Candidate.

    Posted by Happy at 06/28/2009 @ 1:51pm

45. Posted by crabwalk at 06/28/2009 @ 07:41am:

    How do I know they are terrorists? Or terrorists in training? Or terrorists wannabes? The fact they are still at Gitmo after all this time means they are very bad people, and if I want to make a joke at their expense...I don't think I will lose any sleep over it. I just don't have any sympathy for people who are trying to kill us - soorrry... if you do, that is your problem.

    Posted by pyeatte at 06/28/2009 @ 6:36pm

46. Posted by Thrawn at 06/27/2009 @ 12:32am | ignore this person | warn this person check your constitution. congress has jurisdiction over prisoners of war captured on land and on sea. Posted by emile duBois at 06/27/2009 @ 09:07am

    Wow. I don't see that in my copy. Can you cite the article?

    Posted by twillie at 06/28/2009 @ 8:04pm

47. Yet again, no surprise at all from this administration. I must concur that we have all lost the election, and this conviction has only grown stronger with each passing week. To say that Obama was likely preferable in some ways to the other candidates is true for many here but not relevant because in no way does it exculpate the man for the numerous unwise, unjust, and extremely harmful major decisions his administration has already made and will in all likelihood continue to make. The mantra remains: Plus ça change….

    Posted by feinfein at 06/29/2009 @ 12:50am

48. "But Obama is turning out not to that longed for homecoming "

    "I voted for him because I wanted to believe his jive, but the guy is flat freaking evil."

    "I must concur that we have all lost the election, and this conviction has only grown stronger with each passing week."

    You guys saw what you wanted to see in Obama. Sure, he issued some election platitudes, but if you had taken the time to really look at him you would have seen that he is not the far left liberal you wanted or the cons feared. He is a center pragmatist.

    Posted by crabwalk at 06/29/2009 @ 06:32am

49. Posted by pyeatte at 06/28/2009 @ 6:36pm

    If you believe everything the government tells you, why the problem with Obama?

    Basic logic here PYEATTE..

    If Rumsfeld told you ALL the detainees were the worst of the worst and belonged in GITMO, then 500+ of the 750 brought there were released...

    If multiple terrorists have been tried, convicted and are safely behind bars in the US...

    If indefinite detention is a hallmark of repressive regimes...

    All you have to fear is fear itself.

    Posted by crabwalk at 06/29/2009 @ 06:39am

50. So, PYEATTE, you would have no trouble rounding up American right wing "terrorists" including but not limited to Ann Coulter (she says I should be lined up and shot and the NYT should be blown up), Palin supporters that called for the death of Obama, Hugh Hewitt for posting death threats against the Commander in Chief, those that post death threats against "liberals" on multiple blogs, those that say Dr. Tiller "got what he deserved", Right to Lifers, Army of God adherents, Aryan Nation groupies, and ...

    holding them FOREVER, without trial or charges?

    How about if I "felt" that you were a threat and turned you in for a bounty? I am sure you would be comfortable knowing that all the rules were followed, as you sat in air conditioned comfort without access to a lawyer, your family, TV, phones, mail, email, the rest of the world...in Cuba, with Castro? For years.

    Hey, facts are irrelevant, I FEEL threatened by you.

    Posted by crabwalk at 06/29/2009 @ 06:49am

51. Center pragmatist?

    65-70% of Americans want public, not private, health care insurance.

    The centrist & politically pragmatic approach would be to go with 2/3s of the population.

    But that's not where the Big Money is. Going with the Big Money v. the wishes of 2/3s of the people is called by another name & it's neither centrist nor politically pragmatic. It's simply selloing out. Obama did not indicate during his campaign that he would sell out his voters, quite the opposite.

    Posted by sloper at 06/29/2009 @ 08:25am

52. Continuing renditions & indefinite detentions without charges or trials, these are hardly centrist pragmatic practices either ... indeed Obama the candidate condemned both, as they're illegal in intl & domestic law ... unless you consider the US a fascist state, in which case they might be centrist & pragmatic.

    Posted by sloper at 06/29/2009 @ 08:29am

53. Posted by sloper at 06/29/2009 @ 08:25am

    Going where the money (campaign contributions) is, IS pragmatic, from a politicians viewpoint.

    Posted by crabwalk at 06/29/2009 @ 10:36am

54. obama is a weak, scared mistake. He should never have been put in office. He makes Democrats look really bad.

    Posted by Tiger2Lover at 06/29/2009 @ 5:40pm

55. Kucinich in '12!

    Well, one can dream again.

    Posted by sloper at 06/30/2009 @ 06:54am

56. In a move against big USA gubbamint,

    Iraq Marks Withdrawal of US Troops From Cities

    --------------------------------------------------

    US military deaths in Iraq war at 4319

    Posted by winyahn at 06/30/2009 @ 10:58pm