President Obama spoke to the AP last week about the "fifth category" of detainees, those whom the administration claims are too dangerous to be let go but who can't be brought to trial. He seemed to rule out the prospect of an executive order on the issue, which will disappoint some in a group of left-leaning security experts who hoped an executive order would prevent a broader assertion of executive power:
If he goes ahead with indefinite detentions, Obama said he would ask Congress to approve it by law -- and not do it himself through an executive order, as some administration officials have privately suggested. It's unclear where such detainees would be kept, but many in Congress oppose the detainees being brought into the U.S.
"It is very important that the American people and Congress, in conjunction with my administration, come up with a structure that is not only legitimate in the eyes of our constitutional traditions, but also in the eyes of the international community," he said.
That suggests Obama might be mulling something like one of the proposals suggested by Ben Wittes or the more left-leaning David Cole. It's worth noting however, that Obama seems hesitant about the whole idea; I had thought indefinite detention was a done deal, only the details needed to be sorted out. But the AP makes it sound as though Obama hasn't actually made up his mind yet, which may be welcome news to the civil libertarian groups trying to push the White House in the opposite direction.
-- A. Serwer
