So now we know how the Obama administration is going to handle indefinite detention. It's both terrible and better than how the last administration handled it, which is to say pretty much consistent with the administration's record. Detainees subject to indefinite detention would go through a review process in which they'd be given a lawyer, basically a kind of terrorist parole board:
The White House's indefinite detention proposal is basically what we've come to expect from the Obama administration on national security and civil liberties. Having promised to reverse the trajectory of Bush-era national security policies, the Obama administration has settled on merely making them marginally more lawful and humane. It's not nothing, but it's not what Obama promised -- or what much of the left was hoping for.
Ken Gude has a much more sanguine take, seeing it as an important step in closing Gitmo:
Detainees will be represented by attorneys, the review will be conducted by a broad group of agencies — not just the military, and the review board will be separated from those who made previous decisions on that detainee's detention. This is a real adversarial process that the American people can have confidence will come to the best possible determination about the necessity of each individual detainee's continued detention.
Make no mistake: Guantanamo is a stain on America, one that seriously weakens our overall counterterrorism strategy. America's military and intelligence agencies all conclude that Guantanamo provides our terrorist enemies significant propaganda victories and boosts their recruitment, creating more terrorists than it has ever detained. Closing it is a national security imperative and the Obama administration is absolutely correct to continue its push to do that.
Ben Wittes agrees with the substance of the proposal but has some concerns about doing this by executive order rather than statute. For reasons I explain over at Greg's place, some on the left see the executive order as the least worst route for doing this.
Spencer Ackerman wonders why the detainees have lawyers at all given that this is an internal executive branch process. He adds:
No one considers battlefield detentions, as in Afghanistan, problematic as an executive prerogative. That's justly and unproblematically a military necessity. When the U.S. is no longer at war in Iraq or Afghanistan, for instance, it won't have the power to detain Iraqis or Afghans. But the U.S. has never clarified — and the AUMF does not clarify — if it's declaring Battlefield Earth. (International lawyers: would the U.S. even have that power?) That's really what it will have to declare if it wants authority going forward for an indefinite-detentions structure. You can chalk the existing international GTMO population up to early, ad hoc excesses.
I don't think we know the answer to that, although Gude seems to believe the order is confined to Guantanamo detainees. As to the "Battlefield Earth" question, that concerned Barry Law School and Air Force Judge Advocate General Lt. Col. David Frakt as well. This is what he told me over email:
The concept of a global battlefield where anyone supporting Al Qaeda or an affiliated group is a "combatant" or "belligerent" in an armed conflict against the U.S. is not well-supported in international law. Plotting terrorist attacks against civilian targets is first and foremost a criminal matter, not a military one. To date, the Administration has never adequately explained why the 48 detainees designated for indefinite detention are believed to be too dangerous to release but can't be prosecuted. If the reason they can't be prosecuted is because they did not commit any crimes, then why are we holding them at all? If the reason we can't prosecute is because the evidence of criminal wrongdoing was obtained by torture or coercion and therefore likely to be inadmissible in court, then continued detention based on the same evidence is highly problematic. If they can't be prosecuted because prosecution would necessarily compromise important national security information, then that may be a legitimate basis for military detention in lieu of trial.
Right. How legitimate this is depends on who the U.S. holds under this process and why. Frakt also sounded cautiously optimistic about the proposal, describing the addition of a detainee lawyer to the process as "the single most effective way of ensuring that the process is not simply a rubber stamp of the government's detention decisions." It means something that someone like Frakt, who actually represented detainees held at Guantanamo, has positive things to say about the proposal.
I've written a lot about this today, but I actually don't know how I feel about it. I'm disappointed and frustrated that this is becoming official policy, but it's been "unofficial" policy for some time, and under the proposal those subject to indefinite detention will be getting a better deal than before.
