A Grammar Lesson: Obama’s Executive Order on Indefinite Detention

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I hate to be pedantic, but a number of people are misreading Obama’s Executive Order on indefinite detention, with the result that they present the order as much less troublesome than it actually is. Here’s one example, from Ken Gude:

There is now a clearly articulated standard for continued detention; gone is the so-called intelligence justification for detention. A detainee must be lawfully held under the laws of war, must have had that detention upheld by a federal court in a habeas proceeding, and [sic] considered a “significant threat to the security of the United States” to be ordered held by the PRB. And for the first time, the PRB is specifically ordered to consider the reliability of all information it receives.

Here’s another one, from the WaPo:

The executive order recognizes the reality that some Guantanamo Bay detainees will remain in U.S. custody for many years, if not for life. The new system allows them the prospect of successfully arguing in the future that they should be released because they do not pose a threat.

Both of these reports suggest the standard for continued detention is whether or not the detainee, himself, poses a threat.

Here’s the actual language of Obama’s EO:

Sec. 2. Standard for Continued Detention. Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

The subject of the sentence is not “the detainee” but “continued law of war detention.” “Continued law of war detention” is also the subject of the clause that the Administration is cynically claiming is a great standard that will be measured in Periodic Review Boards. Thus, the standard is not–as Gude and the WaPo suggest–that the detainee himself is a significant threat to the US. Rather, the standard is whether or not his detention is necessary to protect against a significant threat.

You need to look no further than the Yemeni detainees–whom the detainee review board has determined are not themselves a threat, but whom we continue to detain because conditions in Yemen make it impossible to release them without exacerbating the threat to the US there–to understand the difference. Now, the Administration has been pretty squirrely about whether this EO applies to the Yemeni detainees. But the EO says it applies to those whom the interagency review “designated for continued law of war detention.” And the Gitmo Task Force determined the Yemenis were designated for “conditional” detention (authorized by the law of war), because,

Al-Qaeda was gaining strongholds in certain regions of the country, and the government of Yemen was facing a rebellion in other regions. Potential options for rehabilitation programs and other security measures were carefully considered throughout the course of the review, but conditions in Yemen remained a primary concern.

Taking into account the current intelligence regarding conditions in Yemen, and the individual backgrounds of each detainee, the review participants unanimously approved 36 of 97 Yemeni detainees for transfer subject to appropriate security measures. The decision to approve these detainees for transfer, however, did not require immediate implementation. Rather, by making each transfer decision contingent on the implementation of appropriate security measures, the review participants allowed for necessary flexibility in the timing of the transfers. Under these transfer decisions, detainees would be returned to Yemen only at a time, and only under conditions, deemed appropriate from a security perspective.

In short, these men are not themselves a threat, but conditions in Yemen make it impossible to release them in such a way as to make sure they don’t become one.

Whether or not the Administration intends to give Periodic Review Boards to the Yemenis, this standard would permit their continued detention even if they themselves are no threat.

But the importance of the grammar of Obama’s so-called standard extends beyond its implication for the Yemenis. By not tying the standard to the terms of the AUMF, to membership in al Qaeda, or to capture on the battlefield, the EO’s standard for review would allow the continued detention of financiers of al Qaeda, people not picked up on a battlefield, men who were members of Hezb-e-Islami Gulbuddin but not al Qaeda, highly trained mujahadeen who may never have targeted the US, or people with a “history of associations with extremist activity” (all of whom were designated for indefinite detention by the task force). In other words, the EO defines itself not by the terms which the law of war would use to define those appropriately detained, but by terms we’ve expanded to include other people we just consider scary.

And those people–the people we think are scary but who have not necessarily targeted the US militarily–would not be invited to prove that they had never targeted the US, but instead they would have to prove that the government basis for considering them scary had no merit. I can imagine an old mujahadeen talking about working with the US to oust the Russians from Afghanistan to show that he didn’t oppose the US, only to have the government respond, “right, but that means you’re so well trained that your release represents a significant threat to the US.” The government could even argue (though I’m sure they won’t in these exact words) that we can’t release those that we mistakenly tortured (say, Mohamedou Ould Slahi) because doing so would reveal the methods we used, which would represent a significant threat to the US.

Finally, I find the vague standard disturbing for another reason. It’s bad enough that the government has divorced indefinite detention from the AUMF that hypothetically justifies that detention. But it has also divorced the concept of indefinite detention from al Qaeda, from the war against al Qaeda, from terrorism itself, even from “national” (read–military) security.

The grammar of the EO is a clear admission on the government’s part that it is willing to indefinitely detain a human being not for what he has done, but because of the big swirling boogeymen it believes to lurk out there.

And it’s important that those who write about this make that distinction clear.

What about Indefinite Detention in Afghanistan?

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I made my two most critical points about Obama’s Executive Order on indefinite detention in my snarky post yesterday. First, even assuming the idea of institutionalizing indefinite detention weren’t bad on its face, Obama’s EO doesn’t provide any standards of review for the kind of people who should be indefinitely detained. The EO’s standard is, “if it is necessary to protect against a significant threat to the security of the United States.”

Equally troubling is that Obama chose to do this via EO. As I have pointed out, the Executive Branch maintains it can change the content of EOs without changing the actual text of them. And on something already as troubling as the institutionalization of indefinite detention, this addition wiggle room is just appalling.

All that said, I want to raise one question, both for the supporters of this policy and for those using this Gitmo 2.0 roll-out to discuss whether Obama, or Congress, deserves the blame for the fact that we haven’t closed Gitmo.

Why doesn’t this policy apply to detainees in Bagram and elsewhere? After all, we’ve got people who are just as indefinitely detained in Bagram right now as we’ve got here (the government might make the argument that we–the US–would lose custody when Afghanistan takes over the prison, but there are a slew of reasons to doubt this, not least that we still have formal custody of some Iraqis). So if this new indefinite detention system is such great humanitarian shakes, why not roll it out everywhere we’ve instituted indefinite detention?

Daphne Eviatar recent observed some Detainee Review Boards in Afghanistan. She emphasizes that Congress has not put the same legal limits on freeing detainees as it has on Gitmo. Yet still, even those the Americans believe are innocent are not freed.

The reluctance to release these men may have something to do with the parallel holdup at Guantanamo Bay, where almost 90 prisoners have been approved for transfer or release but remain stuck in the U.S. prison there.

[snip]

Congress just made returning Guantanamo prisoners even more difficult by blocking their transfer unless the Defense secretary and secretary of State will certify that the receiving country will prevent the detainee from getting involved in any future anti-U.S. activities.

But there’s no legal bar on returning home innocent men, like Hamidullah Kahn, who’ve been recommended for release from Bagram. Yet for some reason, the U.S. government isn’t doing it.

Officials in both the Defense and State Departments I spoke to say they’re aware of the problem but it’s out of their hands. When I was at the Parwan Justice Center at Bagram earlier this week watching Detainee Review Board hearings, one soldier complained about how frustrating it is to be unable to tell innocent prisoners when they’ll be going home, or what’s causing the holdup. The problem, according to the U.S. officials I spoke to in Afghanistan, is somewhere in Washington.

And with the exception of frequency (Detainee Review Boards are supposed to take place every 6 months; Periodic Review Boards take place every 3 years (with reviews of cases, but not hearings, every 6 months), there are reasons the PRBs are better than the DRBs and the Administrative Review Boards of Bush.

The detainee will receive an unclassified summary of the “factors and information” that will be offered to the PRB.  The detainee will always get a “personal representative” (not necessarily a lawyer) to assist, and even more notably will have assistance of private counsel if he wishes (not at government expense).  To the extent that the private counsel has appropriate clearances, the private counsel can have access to the classified portions of the record, though he or she cannot then share that information with the detainee.  In that sense, the PRB is not fully adversarial but is far more adversarial than was the ARB process.  In special circumstances, the government can supply the personal rep/private attorney with a substitute/summary of highly-sensitive classified information.

[snip]

Who serves on the PRB? Another major break with the ARB system, which involved only military officers.  The PRB consists of “senior officials” designated for this task from State, Defense, Justice, Homeland Security, ODNI, and CJCS.  This is a major change from the ARB process, as it converts an entirely military review system into an interagency process (shades of the Guantanamo review task force process).  Equally significant, the PRB must make unanimous decisions.  Should any one member disagree, the matter goes to a “review committee” consisting of SecState, SecDef, the AG, the Secretary of Homeland Security, the DNI, and the CJCS–i.e., the Principals Committee.

The Administration is congratulating itself for the prettier face they just put on indefinite detention. But they only did it where their forever jails attract the most attention, in Gitmo. If these newfangled PRBs are such a great thing, shouldn’t they be rolled out everywhere we’ve got forever detainees squirreled away because “it is necessary to protect against a significant threat to the security of the United States”?

It just seems like, if there is a purpose at all for this newfangled indefinite detention, then that purpose ought to apply across the board. But to the extent this EO applies only to a subset of those detainees we’re indefinitely detaining, then it seems to be just an attempt to pretend Obama hasn’t given up his plans to close Gitmo, “action” he can point to while blaming Congress for the delay, even while the Obama Administration does nothing about those detainees in Afghanistan that they can free without Congressional strictures.

A Modest Proposal: Indefinitely Detain the Banksters

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Obama has declared that he has the authority under the 2001 AUMF to indefinitely hold anyone “if it is necessary to protect against a significant threat to the security of the United States.”

He doesn’t say that person has to be a terrorist, much less part of al Qaeda. He doesn’t say that person has to have any tie to the enemy as defined by the 2001 AUMF, that is, “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” He doesn’t even say that person has to have been rounded up on a battle field, however you define that.

If detaining someone indefinitely is “necessary to protect against a significant threat to the security of the United States,” Obama says, he can do it.

So I say, fine! Let’s indefinitely detain the banksters that crashed our entire economy. They fairly routinely hold the workers and taxpayers of this country hostage these days, just like terrorists do. And when you account for the number of people they’ve left homeless and hungry, the damage they have done may well surpass that of the attack on 9/11. Clearly, the banksters are a “significant threat to the security of the United States”–they’re the biggest threat to the security of the US. And the genius of Obama’s EO is it doesn’t even require the detainees, themselves, represent a threat. Rather, if their detention is necessitated by the security threat, we can detain them. We don’t have to trouble with sorting the good banksters, like Jamie Dimon, from the bad banksters, like Dick Fuld. We can detain them all, just to make sure we don’t accidentally miss any. (Sorry Bill, we can’t take any risks, so this includes you too!)

Simple as that. Our biggest security threat solved!

Mind you, Obama’s Executive Order laying out this amazing limitless standard specifies that the EO only applies to “those detainees held at Guantanamo on the date of this order.”

But we all know that EOs don’t have to say what they mean. We know OLC ruled back in 2001 that, “There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.” We know Bush did just that–change the terms of an EO without changing the text, so none of us had warning we were being spied on. But when national security is threatened–our government has decided–it’s okay to change EOs with no warning.

So all Obama has to do to authorize the indefinite detention of the banksters that represent the biggest threat to our security right now is simply pixie dust his EO, and voila! He can round up the banksters, put them on some tropical island somewhere (I suspect they’ll feel right at home in the Cayman Islands).

It’s as easy as that, vanquishing a security threat, arbitrarily detaining people in the name of security forever.

Right?

With David Kris Gone, Obama Rolls Out “New and Improved” Military Commissions

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I think I’ll do a series of posts over the next few days all starting with the phrase, “with David Kris gone,” showing how Obama has finally gone off the deep end (the “Dark Side”) in his War on Terror and the Constitution.

This edition has to do with Obama’s announcement that he’s in the business of Military Commissions, new and expanded.

From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values. Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees. I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system – including Article III Courts – to ensure that our security and our values are strengthened. Going forward, all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation and the values that define who we are as a nation.

The new and improved Military Detention Regime has two parts.

First, the long-promised indefinite detention by fiat.

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force of September 2001 (AUMF), Public Law 107-40, and in order to ensure that military detention of individuals now held at the U.S. Naval Station, Guantánamo Bay, Cuba (Guantánamo), who were subject to the interagency review under section 4 of Executive Order 13492 of January 22, 2009, continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

One detail of it that sticks out is the standard for continued detention:

Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

Note, this doesn’t appear to tie to any wrong-doing on the detainee’s part. “It” here appears to refer to “continued law of war detention,” suggesting that “it” may be necessary regardless of any threat posed by the detainee himself.

Also note that the standard “significant threat to the security of the United States” doesn’t invoke the war (ostensibly, the war against Afghanistan) itself. This seems very very wrong. It also seems designed to authorized the continued detention of the Yemeni detainees who we admit aren’t themselves a threat, but must be detained, our government says, because they come from a dangerous country.

The second part of the New and Improved Military Detention Regime is more and more military commissions.

The Secretary of Defense will issue an order rescinding his prior suspension on the swearing and referring of new charges in the military commissions. New charges in military commissions have been suspended since the President announced his review of detainee policy, shortly after taking office.

The Administration, working on a bipartisan basis with members of Congress, has successfully enacted key reforms, such as a ban on the use of statements taken as a result of cruel, inhuman or degrading treatment, and a better system for handling classified information. With these and other reforms, military commissions, along with prosecutions of suspected terrorists in civilian courts, are an available and important tool in combating international terrorists that fall within their jurisdiction while upholding the rule of law.

Mind you, the “ban” on using tortured statements is no such thing, as it comes with a nice loophole.

But it all makes for a nice announcement for the shiny new military detention regime.

Cheney/Obama Justice: 3 Detainees + 1 Jailed Whistleblower = 19,000 Rich Tax Cheats

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As a July 1, 2009 Wikileak cable released by Norway’s Aftenposten makes clear, the US and Switzerland included the acceptance of three Gitmo detainees and a settlement in a suit accusing UBS of harboring tax cheats–along with an effort to shut down a Swedish company’s business with Iran–in negotiations “resolving all issues between our countries.”

1. (S) Summary: Swiss Minister for Economics and Trade Doris Leuthard called CDA in to advise that the Swiss Federal Councilors had decided in a special session to shut down Swedish firm Colencos commercial activities in Iran. The Minister also reaffirmed the commitment of the Swiss government to accept several detainees from Guantanamo Bay for resettlement in Switzerland. Minister Leuthard made it clear that these two activities were linked to the achievement of a political settlement in the case of Swiss banking giant, UBS. The US court is scheduled to hear arguments in the civil case on July 13 and it is clear that the GOS hopes a settlement can be reached before the hearing date. End Summary.

2. (S) Minister Leuthard began the meeting by describing todays special session of the Federal Council which was focused on what steps the Swiss government could take to advance a political solution of the UBS case. The Council considered action on the Colenco case, long advocated by the USG and a major topic during the February meeting between Secretary Clinton and Foreign Minister Calmy Rey, was one proactive measure the Swiss government could take in this direction.

[snip]

4. (S) Leuthard then turned the topic of discussion to Swiss willingness to accept several detainees from Guatanamo for resettlement and encouraged us to provide as much data as possible quickly so that the Swiss could move forward. CDA advised that more bio and medical data had been received today and was being delivered via a separate channel.

5. (S) At this point, Leuthard emphasized that these two actions were “elements showing that Switzerland is committed to resolving all issues between our countries.” To bring home the point, she reiterated that this resolve extended especially to finding a political solution to the UBS case. [my emphasis]

One of the recipients of the cable was Deputy Assistant Attorney General Bruce Swartz.

Mind you, the Swiss minister in question has denied there’s a “direct link.” So maybe not a direct quid pro quo–just Switzerland “indirectly” doing us two big favors in exchange for our DOJ limiting how many of the rich tax cheats we pursue in Switzerland. But the favors may go both ways: among those reportedly involved in the UBS scandal were American politicians.

It’s bad enough that we traded 3 detainees (two were some of the Uighurs not even the US government claims had anything to do with terrorism, so we should have been able to settle them in the US) for a deal that ended up shielding most of the tax cheats first targeted in the UBS probe.

But not long after the negotiations, we sentenced the whistleblower in the case, Bradley Birkenfeld, to 40 months in prison.I’m still wandering through the docket, but there’s a bunch of sealed documents in it starting the month before this Wikileak cable and continuing up to the point where the judge gave Birkenfeld more time in prison than prosecutors requested.

Birkenfeld’s imprisonment is considered one of the most egregious examples of the government prosecuting whistleblowers rather than the criminals they expose. Perhaps there’s more to Birkenfeld’s troubling imprisonment than it first appeared?

David Kris Resigns from DOJ

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The U.S. Department of Justice just announced that Assistant Attorney General David Kris just resigned, effective March 4.

“David Kris led the National Security Division (NSD) with great distinction through a period when the department confronted a number of threats to the nation’s security, and there is no doubt that his tireless work helped keep the American people safe,” said Attorney General Eric Holder. “I will miss his leadership.”

“I am grateful for my two years of service as Assistant Attorney General for National Security,” Kris said. “I started my legal career at the Department of Justice, and it has been a tremendous privilege to work with the department’s leadership and the dedicated professionals in the National Security Division.”

As Assistant Attorney General for National Security, Kris helped lead the department’s response to a number of serious threats to the nation, including the attempted bombing of Times Square, the al-Qaeda plot to bomb the New York subway system, the attempted detonation of a bomb onboard an airliner on Christmas Day 2009, and the arrest and prosecution of Mumbai plotter David Headley.

Under Kris’ leadership, the National Security Division also played a pivotal role in the investigation, arrest and swap of Russian illegal agents during the summer of 2010, and prosecuted a number of other significant espionage cases, including Kendall and Gwendolyn Myers, who were caught and prosecuted after decades of spying for the government of Cuba. The division also continued and expanded its enforcement in the areas of export control and counter-proliferation.

During Kris’ tenure, the National Security Division also strengthened its partnerships with the intelligence community and other national security elements, including the Department of Defense and the National Security Council, and advanced significantly in establishing the processes, policies, and procedures necessary to make NSD a highly effective and fully functioning division.

No reason for his departure was given, though Kris did mention his two year tenure; that might explain the March departure, two years after he was confirmed.

DOJ didn’t list it among Kris’ accomplishments, but two other things he is noted for are:

  • Making it clear that the Bush Admin justification for illegal wiretapping — which Holder’s DOJ has never withdrawn — didn’t make any sense
  • Testifying that we probably couldn’t charge material support for terrorism in military commissions

That is, he was willing to admit, on occasion, when DOJ was pushing the limits of its legal authority. Which means he will be missed.

Obama Signs Non-Signing Statement

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Obama has signed the Defense Authorization Act that barred funding for closing Gitmo. And his signing statement–really more of a complaint than an actual signing statement–reads in part:

Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met.  Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests.  The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us.  Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.

With respect to section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict.  We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries.  The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities.  Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers.  Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Now, don’t get me wrong, I’m happy Obama hasn’t issued a real signing statement (a la “Dear Congress: Fuck you. Cheney George”). But this is basically a big punt. It doesn’t talk about constitutional limits on the President (again, of that I’m glad). It doesn’t note that the defense authorization only limits what he can do with defense funds, not DOJ or DHS funds (as ACLU noted). Neither does he use ACLU’s other suggestion: to point out to Congress that these provisions amount to a Bill of Attainder.

At the same time, he does argue for the importance of these issues: “The prosecution of terrorists in Federal court … must be among the options available to us” … “Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries.” He should practice these statements in front of a mirror, along with his point about how they affect national security, because making these statements forcefully in some kind of public venue might actually pressure Congress on this point.

But ultimately, the statement accepts the statements as is–so long as they don’t get bigger!

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

From my perspective, I guess, this punt is as good as can be expected. I prefer this to an expansive signing statement of the Dick Cheney variety. I recognize that the time for Obama to act on this was two years ago and two weeks ago, not now.

But hey! At least he said nice things about civilian courts!

Calling Obama’s Bluff on His Signing Statement

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The ACLU has a fascinating letter to Obama pertaining to his signing statement threat. It basically calls his bluff on his “pretend” problems with Congressional restrictions on his ability to close Gitmo. It does this, first of all, by pointing out that the provisions were part of the National Defense Authorization Act, and therefore limit expenditures by DOD, but not expenditures by DOJ or DHS, which collectively could take on the supposedly prohibited activities.

Contrary to the characterization of the transfer provisions by some media reports and by several members of Congress, the Guantanamo transfer provisions, sections 1032 and 1033 of H.R. 6523, are not complete bans on transfer either to the United States for prosecution in federal criminal court or to foreign countries. Instead, section 1032 (on transfers to the United States) is a funding restriction limited to funds authorized to be appropriated by this particular NDAA, and section 1033 (on transfers to foreign countries) is limited to funds authorized to be appropriated by this particular NDAA or otherwise available to the Department of Defense (“DOD”). At most, the restrictions in the transfer provisions apply only to the expenditure of DOD funds.

Sections 1032 and 1033 do not prohibit the Department of Justice (“DOJ”) from using its own funds to transfer criminal defendants from Guantanamo to federal criminal court in the United States, and do not prohibit the Department of Homeland Security (“DHS”) or State from using their own funds to transfer detainees from Guantanamo for resettlement or repatriation in foreign countries.

The letter goes on to point out the many times Congress has passed legislation that banned all expenditures tied to closing Gitmo. It even notes (addressing one of my concerns) that the House passed, but not the entire Congress, a more substantial ban in one of the versions of the continuing resolution. Congress knows how to ban all expenditures on closing Gitmo, the ACLU notes, but it chose not to do so.

But if Obama interprets the law to limit all expenditures on detainee transfers, the letter continues, then it would be an unconstitutional Bill of Attainder.

As the Supreme Court explained in Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977), the Bill of Attainder Clause in Article I of the Constitution prohibits Congress from passing “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” The three elements of a bill of attainder are “[1] specification of the affected persons, [2] punishment, and [3] lack of a judicial trial.” Selective Serv. Sys. v. Minn. Public Interest Research Group, 468 U.S. 841, 847 (1984). The transfer provisions of H.R. 6523 are unconstitutional because they would meet each requirement.

Now, IANAL, so I await bmaz’ take on this (because he loves to talk about Bills of Attainder). But I’m less convinced by this argument; I’m less convinced this argument would stand up in court.

I also think this part of the argument could be stronger still. Doesn’t Congress, by prohibiting the President from spending any money on Gitmo transfers, consign them to the imperfect justice system there? If so, why not note that?

Moreover, if–as ACLU argues–Congress’ law equates to requiring detainees to stay at Gitmo, and if–as ACLU argues–“the ‘lack of a judicial trial’ element would be met because … fewer than 40 of the detainees will ever be tried for any crime,” then isn’t the ACLU asking Obama to complain about Congress forcing him to indefinitely detain these detainees?

Mind you that argument has one technical problem: that this defense authorization only lasts for one year. So the law only requires Obama to “indefinitely” detain these men for one year.

But then there’s the larger problem. Obama is on the verge of signing an Executive Order implementing an indefinite detention protocol himself. As increasingly incredible as his “pretend” efforts to close Gitmo may be, they’re still far more credible than a complaint from Obama about Congress forcing him to, effectively, do what he’s about to do via EO anyway.

Which is what this letter, at its best, seems to do: force Obama to admit that he’s choosing to abide by this Congressional restriction because it forces him to do what he wants to do anyway.

DOD, State, and Obama’s “Pretend” Desire to Close Gitmo

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Robert Chesney had an interesting observation about the inter-agency group Dafna Linzer reports is working on some kind of statement with regards to Congress’ restrictions on Obama’s ability to move detainees from Gitmo to the US: the apparent non-participation of DOD in the group.

Second, and perhaps relatedly, note that the story also describes the interagency meetings concerning a possible signing statement, meetings that apparently involved a “small circle of policymakers and lawyers from the White House, the Justice Department and State Department” who “spent the closing hours of 2010 considering drafts for a statement.”  What is interesting about that is the apparent absence of the Defense Department.  Of course, not being involved in drafting would not necessarily mean that DOD has no or little voice in the matter, but it certainly would not suggest DOD has much of a role either.  One might respond that this is really a question for DOJ and the White House Counsel’s office of course, but in that case why is State there?  State has clear equities, of course, so I think it makes perfect sense to include it.  But DOD’s equities seem at least as substantial (yes, the IC has equities here as well, but the DOD omission is what strikes me as remarkable – if there really is an omission).

While I don’t know this to be a case, I’d suggest that we might pair that observation with one I made yesterday: that one of Linzer’s sources used the word “pretend” when discussing Obama’s purported plans to close Gitmo.

If the bill were signed without challenge, the remaining prosecutorial option left for the administration would be to charge detainees in military commissions at Guantanamo, with those convicted serving time at the facility. So far, the administration has been unwilling to bring new charges in that setting.

“The bill,” said one administration official, “undermines the principles outlined in the president’s archives speech and there is no way to pretend you are closing Guantanamo if that law goes through unchallenged.” [my emphasis]

As Adam Serwer noted some weeks ago, if the Obama Administration really objected to Congress restricting its prosecutorial power in this matter, it would have rolled out the Republican Bob Gates to talk about how important closing Gitmo is to winning the war on terror.

I don’t know whether the administration blessed this deal, but they certainly haven’t brought out the big guns–a few words from Defense Secretary Robert Gates would probably go a long way towards dissuading the Senate from going through with this.

(Though Serwer goes on to suggest that another way Obama could indicate the seriousness of his opposition to the restriction would be to issue a signing statement–now we know who to blame for this idea!)

If your desire to close Gitmo is now just pretend, make-believe, then why involve DOD at all? Indeed, a “pretend” desire to close Gitmo would well explain why you involve State, but not DOD.

As I have noted, one of the revelations in the Wikileaks cables is the way in which Spain advised us how to help it combat torture investigations in that country: by proving that some kind of legal process was ongoing in the US.

Zaragoza has also told us that if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain. We intend to further explore this option with him informally (asking about format, timing, how much information he would need, etc.) while making it clear that the USG has not made a decision to follow this course of action.

And the diplomats involved–writing to Secretary of State Clinton–make it clear they will find out from Spain what such a proceeding must look like to serve the purpose of staving off a Spanish investigation.

After which, DOJ seeems to have embarked on a “pretend” investigation into torture that–they insist–is ongoing.

Who do you think the audience for any “pretend” effort to close Gitmo would currently be? Certainly not the bulk of the American people, who have been thoroughly suckered by GOP fearmongering on Gitmo. Nor, probably, would the primary audience be al Qaeda and its potential recruits, which would probably be far more impressed at this point if the US decided to halt drone strikes than if it closed Gitmo.

Indeed, it seems clear that the only reason Obama would feel obliged to pretend to want to close Gitmo anymore (because God knows he seems thoroughly unconcerned by civil libertarians squawking about his campaign promises) is the international community.

And so a statement about Obama opposition to Congress tying his hands on Gitmo wouldn’t matter to DOD, because nothing at Gitmo is actually going to change (aside from his face-saving EO on indefinite detention). But it would matter to the State Department, because they would be the ones who might have had discussions about what a “pretend” effort to close Gitmo would have to look like to please our allies and make them willing to continue to partner with us on counter-terrorism.

Which might explain why no one at the White House will claim Obama actually wants to use a hypothetical signing statement. Because merely issuing one–but not actually relying on it–would serve its intended purpose: to allow the Administration and our allies to pretend that the US wants to close Gitmo.

Update: YouTube added per PeasantParty.

A Signing Statement to Protect Presidential Powers Obama Won’t Commit to Use

/in , /by

That’s the short version of this Dafna Linzer story on Obama Administration plans to combat Congressional efforts to keep Gitmo open forever. Obama will include a signing statement with the appropriations bill asserting that limits on what he can do with Gitmo are unconstitutional [see update below].

Obama administration officials say they plan to reject Congressional efforts to limit the president’s options on Guantanamo, setting the stage for a confrontation between the president and the new Congress on an issue that has been politically divisive since Inauguration Day.

[snip]

White House aides are recommending that President Obama sign the spending bill and then issue a “signing statement” challenging at least some of the Guantanamo provisions as intrusions on his constitutional authority.

[snip]

If the bill were signed without challenge, the remaining prosecutorial option left for the administration would be to charge detainees in military commissions at Guantanamo, with those convicted serving time at the facility. So far, the administration has been unwilling to bring new charges in that setting.

“The bill,” said one administration official, “undermines the principles outlined in the president’s archives speech and there is no way to pretend you are closing Guantanamo if that law goes through unchallenged.” [my emphasis]

Note, this unnamed administration official used that word, “pretend,” not me.

But, Linzer goes on, the Administration has not yet decided whether Obama will use these powers he is trying to protect.

The White House has, until now, balked at confrontation even as it watched its policy options dwindle. Not one administration official who spoke about the internal deliberations could say for sure whether the White House, in moving to protect the right to prosecute detainees in federal court, would in fact use it.

“All presidents want to preserve maneuverability and authority, that is natural,” said Elisa Massimino, president of the civil rights organization Human Rights First. “But President Obama has had the authority to move prisoners to the United States, he’s done the background work to identify people to bring to justice and he’s squandered the opportunities to exercise that authority. It is striking to now see a fiercer desire to preserve authority than to use it,” she said. [my emphasis]

Apparently, I guess, Obama’s just going to fight Congress on this to protect presidential power for Dick Cheney to use in a future Republican administration, not to use himself.

Now, aside from my concerns about the separation of powers on this move, I’m amused by the centrality of prosecutorial discretion in it.

After all, the whole point of guarding the executive branch’s prosecutorial discretion is to shield it from the whims of politics, to ensure the integrity of prosecutorial decision making.

But Obama threw that integrity out the window when he allowed his Chief of Staff to override the Attorney General’s authority on Gitmo generally and the location of the 9/11 trial specifically. So Obama’s going to argue he needs to protect prosecutorial discretion, but it’s a prosecutorial discretion already tainted by White House interference.

Which means this plan–to use a signing statement to demand prosecutorial independence–amounts to Obama stating that only he (well, and his former Chief of Staff Rahm Emanuel), not Congress, gets to interfere politically with prosecutorial decision-making.

Update: As MadDog notes, Linzer has updated her piece to note that the signing statement may make no constitutional complaint, but simply note Obama’s opposition to that part of the law.

Others have recommended that he express opposition to the Guantanamo sections without addressing their constitutionality.

I guess that would serve the purpose of “pretending” to want to close Gitmo without having to try too hard.