Obama Contemplates Executive Order for Detention Without Charges

by Glenn Greenwald

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When Obama first unveiled his "preventive detention" policy, many defenders praised him (and claimed he was different than Bush) because of his vow that – as he put it – "my Administration will work with Congress to develop an appropriate legal regime."  But now, relying exclusively on three Obama officials speaking behind a veil of anonymity, Peter Finn and Dafner Linza of The Washington Post and ProPublica report that the White House is "crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely."  TPM calls this "the latest installment in the Obama administration's tendency to mimic the Bushies on war on terror tactics."  And the article itself points out the obvious:  "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."  Revealingly, the article quotes two Bush national security officials justifying the need for detention without charges.

Anonymous trial balloon articles like this one are difficult to comment on because it's obviously designed to announce that a certain policy is being considered before it's actually written, and so none of the key details is known.  Would Obama's new detention powers apply only to current "War on Terror" prisoners at places like Guantanamo and Bagram, or would they also apply to future, not-yet-abducted detainees as well?  Would these powers apply to detainees picked up anywhere in the world, far away from "war zones"?  Would there be any judicial review or other meaningful oversight provisions so that – even in theory – this was something other than the unilateral, unchecked presidential power to detain indefinitely without charges?  None of these important details is known (though the article notes that, under one White House proposal, "ongoing detention would be subject to annual presidential review"; the Emperor, sitting alone, will decree once a year whether they must remain in a cage).

This specific article is even worse than the usual one of its type, since it's particularly uncritical in passing along administration claims without any skepticism (I addressed each of the "justifications" for Obama's preventive detention proposal – Obama has to do this because of what Bush did; we can't get convictions because of Bush's torture; it's common in War to do things like this, etc. etc. – here).  Worse, the article does not provide any information about the Obama officials whose mission the reporters are dutifully carrying out, so there's no way to assess their motives. 

Those journalistic practices produce egregious sentences like this:  "'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."  I'd love to know which so-called "civil liberties groups" are pushing the White House for an Executive Order establishing the power of indefinite detention.  It's certainly not the ACLU or Center for Constitutional Rights, both of which issued statements vehemently condemning the proposal (ACLU's Anthony Romero:  "If President Obama issues an executive order authorizing indefinite detention, he’ll be repeating the same mistakes of George Bush"). 

All of that said, we already know that Obama wants a system of preventive detention without charges – because he said so explicitly in last month's "civil liberties" speech ironically and cynically delivered in front of the U.S. Constitution at the National Archives.  And it's hard to imagine how he won't get what he wants:  Republicans are eager to grant the President this detention authority (Sens. Tom Coburn and Lindsey Graham have both gushingly praised Obama's proposal) and, as the Bush era proved, there are always more than enough Congressional Democrats to join with the GOP caucus to enact any new system of expanded detention and surveillance powers.  Absent serious public opposition (and one recent poll shows overwhelming opposition), it seems highly likely that Barack Obama will wield the power to imprison people indefinitely without charges of any kind.

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