The Washington Post and Pro-Publica [ed note: collaboration!] report that the White House counsel's office has drafted an executive order authorizing -- or, rather, asserting, that the President has the inherent authority to detain certain classes of people indefinitely. (Update: Ben LaBolt, an Obama spokesperson, flatly denied the report to me. "There is no executive order. There just isn't one.") For what it's worth, administration officials say that
the story seems to overwrite something that is common knowledge, that President Obama hasn't decided on a course of action yet, and that the task force he appointed to figure out these issues is weeks away from presenting its recommendations to the White House. It is not clear whether the draft executive order applies to detainees held at Bagram Air Force Base in Afghanistan, or in camps in Iraq, or detainees collected in future operations, or even in cases where suspected terrorists are identified in non-contiguous countries. I note, at 10:40 p.m., the Washington Post has softened the story a bit, referring to the "drafting" in the present. And the administration refuses to parse verb tenses with me -- is drafting, might draft -- those are still possible. "Have drafted" is apparently untrue.
It's true, of course, that elongated/indefinite
detentions are on the table for a bunch of Guantanamo detainees; that
we know because the President said as much in his May 21 speech at the
National Archive. It would be prudent for the White House counsel's
office to draft language asserting the president's authority. When
Obama decided to locate his Guantanamo detention authority in
Congress's 2002 force resolution for Afghanistan, he very plainly did
not give up any implied powers that his branch possesses. It would be
quite a slap in the face to Congress were the President to unilaterally
assert detention authority over Guantanamo detainees.
I think the administration still wants to work with Congress on a new
policy. I also know that time is of the essence. Gitmo is going to shut
down before a bunch of the trials have been completed -- or even begun.
Were are the detainees awaiting trial going to go? And under what
authority will be they transferred? (My guesses: Guam, and Obama's.)
A senior Congressional aide e-mails to add:
"Even with an executive order, they still need the funding to be released before they can incarcerate any detainees in the United States. None of the appropriations bills for fiscal year 2010 that are working their way through committee fund the closure as requested by the President. And I expect that the DoD approps bill will present a debate over continuing to bar detainees from being incarcerated in the U.S."
Don Stewart, chief spokesman for minority leader Mitch McConnell, points me to something the Kentuckian said on the floor of the Senate:
"An overwhelming bipartisan majority of the Congress disagreed with the administration's request for $80 million from Congress for the purpose of closing the detention facility at Guantanamo Bay before the administration even has a place to put the detainees who are housed there, any plan for military commissions, or any articulated plan for indefinite detention."
"President has the inherent authority to detain certain classes of people indefinitely."
" It is not clear whether the draft executive order applies to detainees held at Bagram Air Force Base in Afghanistan, or in camps in Iraq, or detainees collected in future operations, or even in cases where suspected terrorists are identified in non-contiguous countries."
Well after it being announced that people like me present a serious threat to my county, the United States of America, I am a bit concerned. Should we be?
Who are people like me? Muslims? People from the Middle East (however that is defined)? Who?
What's next for Gitmo?
Check out http://gitmotourism.blogspot.com
Notice the text of the denial. "There is no executive order. There just isn't one."
Of course this is correct. But that wasn't what the Post said. The Post said that a draft executive order exists. A draft executive order is not an executive order. Go back and check again, they might be tricking you. Ask if he/she is saying that there is no draft executive order.
I was hoping we'd be done with such games when Bush left, but unfortunately the Obama people are almost as slippery.
The Obama Administration is in the business of running and protecting the country. There are some hard realities that must be negotiated, the same thing I said with Bush, but there has to be a degree of transparency to ensure that the protection of American citizens, human rights, and America's image in the global arena is not compromised8.
Ambinder is playing dumb. He pretends that that WAPO/Pro Publica story claimed that there was an executive order, but what the story actually claims is that the administration is "crafting language" for an executive order.
Ambinder also apparently did not read the Washignton Post story, since said story quoted the same White House spokesman that Ambinder now quotes as saying the same thing he told the Washington Post: that there "just isn't an executive order."
But Ambinder is Obama's stenographer, and as such, needs to do what he has to do.
Okay, I've been asking this in various places where I see emotional condemnation without appearing to approach the actual subject of the process of government and rule of law.
In my reading of the constitution the president has no power to set the rules regarding capture of prisoners on land and at sea. That is specifically given to the president.
I'm not a constitutional lawyer so there is something I may be missing but so for critiques I have read are quite long on moral rectitude, outrage, and progressive values that are supposedly being betrayed but I thought the key thing here was rule of law. Or do we only say that when we want to put a political enemy in prison?
The truly egregious thing done by the Bush administration was to decide to simply step outside of any constitutional process and claim the right to do everything all by their lonesome with no oversight, constitutional checks and balances, or anything resembling accountability or openness.
Eventually when they where shot down by the USSC they got congress to do something. Being a totally supine congress in an election year the GOP figured they could use it as an issue to club the dems with. So they passed a law giving Bush this authority.
So as I understand the constitution unless congress grows a pair and starts doing its sworn constitutional duty if the administration wants to abide by the rule of laws and NOT act like Bush they must act within the parameters of laws passed by congress.
Being that he gave them a proposal and they ran in terror when FOX said "BOOO! Scary Muslims!" what in the hell are people expecting him to do?
It seems to me that he can reasonably change their status to POW and then operate under Geneva or he can use the powers congress gave Bush.
What is the other constitutional alternative?
"In my reading of the constitution the president has no power to set the rules regarding capture of prisoners on land and at sea. That is specifically given to the president."
This particular point of yours is a little unclear, are you unclear of the power of the President to create Executive Orders and the scope those Executive Orders.
One place you should check is Wikipedia (most educators don't push this site, but its a creating starting point for further research) regarding Executive Orders. Fundamentally Presidents aren't allowed to create laws through Executive Orders. Presidents are allowed to create Executive Orders that correspond to the Congressional Law. There are a few incidents historically where this has not been the case, and there are many political reasons that this takes places and remains unchallenged by congress.
I'm not a Congressional Lawyer, so by no means an expert, but did I little digging to get a better understanding.
The truly egregious thing done by the Bush administration was to decide to simply step outside of any constitutional process and claim the right to do everything all by their lonesome with no oversight, constitutional checks and balances, on line pharmacy or anything resembling accountability or openness.
Eventually when they where shot down by the USSC they got congress to do something. Being a totally supine congress in an election year the GOP figured they could use it as an issue to club the dems with. So they passed a law giving Bush this authority.