Preventive Detention Floated

John Cole said to prepare for an anti-Obama shit fit based on this news, but isn't it a pro-civil liberties shit fit? A pro-habeas corpus shit fit? A pro-due process shit fit? A pro-hundreds of years of Western-style criminal justice shit fir?

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.

It's important to note that an unnamed White House official denies the existence of a draft order, and in the story spokesman Ben LaBolt does the same. But if you believe the general overview of the piece, we're about to see a little over 100 prisoners, with insufficient evidence to be tried but suspicions that they would "return to the battlefield," as it were, if released, will be held indefinitely in a prison, whether it's Guantanamo or not, until such time as they are fit to release, at the end of the so-called war on terror, I suppose.

The Administration is still working from this theory that the only problem with Guantanamo is its symbology and not its reality, that the indefinite detention of prisoners, their torture and abuse, etc., constituted the outrage of the world, not its location.

The other kind of astonishing thing with this idea is that the courts have ALREADY found it unconstitutional. Hamdan v. Rumsfeld pretty much put it to rest. In fact, the attorney for Salim Hamdan in that case was President Obama's own Deputy Solicitor General, Neal Katyal.

If this were sent out as a trial balloon to gauge reaction, hopefully the White House staff will take a click over to TPM:

But it doesn't sound like those groups are pysched about the news, exactly. Shane Kadidal of the Center for Constitutional Rights told TPMmuckraker via email:

Prolonged imprisonment without trial is exactly the Guantanamo system that the President promised to shut down. Whatever form it takes - from Congress or the President's pen - it is anathema to the basic principles of American law and the courts will find it unconstitutional.

Kadidal continued:

Another thing that's odd about this is the idea that this detention authority would somehow be more transient if it were authorized through executive order (which can be reversed at the stroke of the president's pen) rather than a statute (which could sit on the books indefinitely). If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent.

In fact, this executive abuse is being carried out to cover up the previous executive abuse, which doesn't excuse Obama for this illegal action, but just shows how untrammeled executive power can just snowball. Indeed, in at least one Guantanamo case, it can be argued that preventive detention will be employed to cover up the torture of one of the potential witnesses in the trial.

Glennzilla notes something even more horrific about this:

There has now emerged a very clear -- and very disturbing -- pattern whereby Obama is willing to use legal mechanisms and recognize the authority of other branches only if he's assured that he'll get the outcome he wants. If he can't get what he wants from those processes, he'll just assert Bush-like unilateral powers to bypass those processes and do what he wants anyway [...]

That, for instance, is the precise pattern that's driving his suppression of torture photos. Two federal courts ordered the President to release the photos under the 40-year-old Freedom of Information Act. Not wanting to abide by that decision, the White House (using Lindsey Graham and Joe Lieberman) tried to pressure Congress to enact new legislation vesting the administration with the power to override FOIA. When House progressives blocked that bill, the White House assured Lieberman and Graham that Obama would simply use an Executive Order to decree the photos "classified" (when they are plainly nothing of the sort) and thus block their release anyway.

People are starting to wake up to the evidence that the President has basically carried on a good deal of the same abuses of the Bush regime, and this attempt to engage in preventive detention is perhaps the worst example. The idea that the Administration cannot change certain prisoners because we cannot be assured ahead of time that they will win a conviction sets the standard of law completely on its head. As Bob Herbert notes:

Americans should recoil as one against the idea of preventive detention , imprisoning people indefinitely, for years and perhaps for life, without charge and without giving them an opportunity to demonstrate their innocence. And yet we’ve embraced it, asserting that there are people who are far too dangerous to even think about releasing but who cannot be put on trial because we have no real evidence that they have committed any crime, or because we’ve tortured them and therefore the evidence would not be admissible, or whatever. President Obama is O.K. with this (he calls it "prolonged detention"), but he wants to make sure it is carried out -- here comes the oxymoron -- fairly and nonabusively. Proof of guilt? In 21st-century America, there is no longer any need for such annoyances. Human rights? Ha-ha. That’s a good one.