White House Weighs Exec Order On Detention

Washington Post: Move Would Reassert Power To Hold Terror Suspects Indefinitely

(Washingtonpost.com)  By ProPublica and Washington Post Staff Writers Dafna Linzer and Peter Finn.

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Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for 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 an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the military facility in Cuba, White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible. Several officials said there is concern in the White House that the administration may not be able to close the prison by the president's January deadline.

White House spokesman Ben LaBolt said that 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 is already trying to build support for an order.

"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 Such an order could be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should be prosecuted or released.

The Justice Department has declined to comment on the prospects for a long-term detention system while internal reviews of Guantanamo detainees' cases are underway. One task force, which is assessing detainee policy, is expected to complete its work by July 21.

In a May speech, President Obama broached the need for a system of long-term detention and 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.

Some of Obama's top legal advisers, along with a handful of influential Republican and Democratic lawmakers, have pushed for the creation of a "national security court" to supervise the incarceration of detainees deemed too dangerous to release but who cannot be charged or tried.

But the three senior government officials said the White House has turned away from that option, at least for now, because legislation establishing a special court would be difficult to pass and likely to fracture Obama's party. These officials, as well as others interviewed for this article, spoke on the condition of anonymity because they were not authorized to speak publicly about internal deliberations.

On the day Obama took office, 242 men were imprisoned at Guantanamo. 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.

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 said the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release. Two officials involved in a Justice Department review of possible prosecutions said the administration is strongly considering criminal charges in federal court for Khalid Sheik Mohammed and three other detainees accused of involvement in the Sept. 11, 2001, attacks.

The other half of the cases, the officials said, present the greatest difficulty because these detainees cannot be prosecuted in federal court or military commissions. In many cases the evidence against them is classified, has been provided by foreign intelligence services or has been tainted by the Bush administration's use of harsh interrogation techniques.

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. One official said the administration is hoping that as many as 70 Yemeni citizens will be moved, in stages, into a rehabilitation program in Saudi Arabia.

Three months into the Justice Department's reviews, several officials involved said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees cannot be charged or released.

The White House has spent months meeting with key congressional leaders in the hope of reaching agreement on long-term detention, although public support for such a plan has wavered as lawmakers have sought to prevent detainees from being transferred to their constituencies.

Lawyers for the administration are now in negotiations with Sens. Carl M. Levin (D-Mich.) and Lindsey O. Graham (R-S.C.) over separate legislation that would revamp military commissions. A senior Republican staff member said that senators have yet to see "a comprehensive, detailed policy" on long-term detention from the administration.

"They can do it without congressional backing, but I think there would be very strong concerns," the staff member said, adding that "Congress could cut off funding" for any detention system established in the United States.

Concerns are growing among Obama's advisers that Congress may try to assert too much control over the process. This week Obama signed an appropriations bill that forces the administration to report to Congress before moving any detainee out of Guantanamo and prevents the White House from using available funds to move detainees onto U.S. soil.

"Legislation could kill Obama's plans," said one government official involved. The official said an executive order could be the best option for the president at this juncture.

Under one White House draft that was being discussed this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system.

Such detainees -- those at Guantanamo and those who may be captured in the future -- would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge.

Officials say the plan would give detainees more rights and allow them a better chance than they have now at Guantanamo to one day end their indefinite incarceration.

But some senior Democrats see long-term detention as tantamount to reestablishing the Guantanamo system on U.S. soil. "I think this could be a very big mistake, because of how such a system could be perceived throughout the world," Sen. Russell Feingold (D-Wis.) told Holder.

One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.

"Going forward, unless it's an extraordinary case, you will not see new transfers to the U.S. for indefinite detention," the official said.

Instituting long-term detention through an executive order would leave Obama vulnerable to charges that he is willing to forsake the legislative branch of government, as his predecessor often did. Bush's detention policies suffered defeats in the courts in part because they lacked congressional approval and tried to exclude judicial oversight.

"There is no statute prohibiting the president from doing this through executive order, and so far courts have not ruled in ways that would bar him from doing so," said Matthew Waxman, who worked on detainee issues at the Defense Department during Bush's first term. But Waxman, who waged a battle inside the Bush administration for more congressional cooperation, said that the "courts are more likely to defer to the president and legislative branch when they speak with one voice on these issues."

Tawfiq bin Attash, who is accused of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.

Little information on bin Attash's case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

"These issues haven't morphed simply because the administration changed," said Juan Zarate, who served as Bush's deputy national security adviser for counterterrorism and is now at the Center for Strategic and International Studies in Washington.

"The challenge for the new administration is how to solve these legal questions of preventive detention in a way that is consistent with the Constitution, legitimate in the eyes of the world and doesn't create security loopholes that cause Congress to worry," Zarate said.


ProPublica is an independent, nonprofit newsroom that produces investigative journalism in the public interest. Washington Post staff researcher Julie Tate contributed to this report.

[THECBRE]

check the Stck Market for your answers. #1 Biotechnical experimentation. #2 Pharacutical Research and developement #3 Prison stiock. Their demise is why you have food on your table.

[THECBRE]

Consider discovery of the FACTS and TRUTHS, as to who and why they are there! Then comment!!!!!!

[didserve]

Do your Job!

Send them to court or set them free!

You dont have a 10 year plan you are only elected for 4 years !

Put Cheney in Jail he is worst that most of these idiots!

[rhs648]

Keeping terrorists locked up is their job even if it means holding them for 100 years. These prosioners are not American citizens. They are not being held in America. Therefore, our constitutional rights do not extend to them. President Obama has to deal with these facts now that the campaign rhetoric is over. These are things that the Bush administration already knew.

[kesac4650]

The Constitution says they have no right to Habeus Corpus. The Geneva Conventin says they will be held for the duration. Obama is is coming around to the idea that Bush was right on this issue all along, in spite of Obama's Campaign promises to release our enemy to target us again.

[speakinup22]

Now, THIS is an educated opinion. Well stated kesac4650.

[ToolMangler1]

The media caused the downfall of the GOP with well orchestrated stories and Op-Eds about torture in Abu Graib and later in GITMO. Now they are doing the same to the Dems and Obama. What ever happened to reporting the news 'straight up' without a slant one way or the other. It almost looks like a conspiracy to keep America off balance.

[rhs648]

At last the Obama administration is learning what the Bush administration already knew. There is nothing like reinvenmting the wheel pover and over again. The choice is simple. National security over rights for terrorists. But the election rhetoric sounded so good. For the poster who ikes to call people ditto heads, get a life.

[jackp32]

If Hitler were alive and well, and in charge, none of these things would be happening in the U.S.

[speakinup22]

He is. It is a two headed beast called Mahmoud Ahmadinejad and Ayatollah Ali Khamenei.

[tautomer]

Barak Hussein OBUSHma!

[ttinsly]

Simple question really. Why do we need to create these special courts? Why do they need to be flown off to foreign countries? You would imagine that if we had some evidence to suspect them of being terrorists in the first place that we would then be able to prove more of them guilty.

I just don't understand how so many suspects that were made suspects to begin with would not have any evidence against them that is sufficient to jail them permanently. All other countries that have experienced terrorist attacks have been able to arrest and imprison terrorists without having to resort to eliminating Habeaus Corpus (a basic cherished democratic right to not be imprisoned indefinitely without charges and evidence against you. One of the basic complaints against the British Crown in our Revolutionary War). So why venture into such positions/laws like the Military Commissions Act 2007 of being able to declare ANYONE, american or not, of being an "enemy combatant" without the need for any proof only to detain them indefinitely without charges, in a country where torture may be allowable in certain circumstances (even if after being flown to a foreign prison, or off-coast Navy ship).

Clearly, this is a slippery slope that is not something we should venture into if we want to maintain any semblance of democracy. Misuse of power is easy, and I think after this decade (and after examining history, communism, fascism etc.) we should all know that precisely these shifts in rights can/have lead in the past/ and will lead to a further degradation of democratic rights until one day we will realize that they do not exist anymore, or hardly in the same capacity as they did before. As a matter of fact, these are the very kinds of shifts in rights that have taken place to subvert and destroy democracy. Think when communism/fascism took hold in our history books. In a world where multinationals have more power than national governments. Why do this?

Why do this? WHY DESTROY DEMOCRACY IN ORDER TO "SAVE IT"? Don't you see that this logic is absolutely twisted, and self-defeating? WE ALL NEED TO SAY NO TO THIS FOR FUTURE GENERATIONS UNLESS WE WANT TO HAVE THEM LIVE IN SOMETHING APPROACHING 1984. Read it (1984 by George Orwell), it is what the Neo-cons, and some democrats would be happy to have us live through (or something like it anyway). It only takes a shift in this direction each generation; and before you know it we are there. If we want to stop it now, BEFORE THAT HAPPENS, we need to allow ourselves to at least see this possibility; because power does corrupt. And power these days is not very egalitarian or democratic. We can see the consequences of this in our media and our finance sector, and health care sector etc. It can and will only get worse until we all decide on a different path and move there together.

[xlib]

Oh, so now it's "preventive detention". How I love the way the msm,oops, state run media, twists and turns a phrase. It's genius, just genius. And, true to form, the lemmings lap it up.
Well, I guess one phrase he droned, he is in "over his pay grade". Guess soros didn't prepare him well enough.
Well, I'm just glad to see that some of the poor, misunderstood, young men are enjoying themselves in Nassau.

[skyk-2009]

Oh THIS is rich! A Ditto Head who helped elect the WORST most INCOMPETENT man to ever sit in the White House has the lack of intelligence to call people who were ABSOLUTELY right about that WORST President "lemmings"! If that doesn't win him the Ditto of the Year award I don't know what would! ROFLMAO

[tautomer]

by skyk-2009 June 27, 2009 Oh THIS is rich! A Ditto Head who helped elect the WORST most INCOMPETENT man to ever sit in the White House....
__________________________________________________________________

So you're saying this guy actually helped to elect Obama? Man that's messed up!

[nottellin1]

Isn't interesting that many of the released are kenyan

[tautomer]

Barak Hussein OBUSHma!

[skyk-2009]

Oh PLEASE! You ditto heads are so simple... Funny, but simple! Now crawl back under your rock and keep praying for failure of your country! LOL

[veteran71]

As the Global Corporatist Neocon Nazi Ruling Elites finalize the complete enslavement of the Worlds populations, a few Mouth-Breathing Dullards and 59 IQ Retards will finally understand they were duped and told to hand over all their Rights and Freedoms in the name of "Safety" and "Security" from the evil "Ter'ists", which like good little Sheeple, they gladly did, but by then, it will be much too late to do anything about it......wake up morons, the only "Ter'ists" reside in Washington DC in the Halls of Congress and the White House, and in the Board Rooms of the Federal Reserve and the Bilderburg Corporatist Nazis. They're shutting down the economy, spreading bio-weapons grade manufactured viruses, and they won't stop till 99% of the Worlds population, (that's right, that means you), is dead.
Get your guns and ammo ready Droolers, the War for Individual Freedom and Liberty is almost here......
Death to the Ruling Elites.

[thincaboutit]

What's next for Gitmo?
Check out http://gitmotourism.blogspot.com

[speakinup22]

I hope President Obama decided he has made a mistake, and does a 180.

If he does, I will not gloat, I will praise him for learning.