White House Drafting Executive Order to Allow Indefinite Detention; Move Would Bypass Congress

By Dafna Linzer and Peter Finn, ProPublica. Posted June 30, 2009.

Three months into the Justice Department's reviews, several officials involved said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees can not be charged or released.

The White House has spent months meeting with key congressional leaders in the hopes of reaching agreement on long-term detention, even as public support for such a plan has wavered as lawmakers have sought to prevent detainees from being transferred to their home states.

Lawyers for the administration are now in negotiations with Sens. Carl Levin, D-Mich., and Lindsey Graham, R-S.C., over separate legislation that would revamp military commissions. A senior Republican staff member said that senators have yet to see "a comprehensive, detailed policy" on long-term detention from the administration.

"They can do it without congressional backing, but I think there would be very strong concerns," the staff member said, adding that "Congress could cut off funding" for any detention system established in the United States.

Concerns are growing among Obama's advisers that Congress may try to assert too much control over the process. Earlier this week, Obama signed an appropriations bill that forces the administration to report to Congress before moving any detainee out of Guantanamo and prevents the White House from using available funds to move detainees onto U.S. soil.

"Legislation could kill Obama's plans," said one government official involved. The official said an executive order could be the best option for the president at this juncture.

Under one White House draft that was being discussed earlier this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system.

Such detainees -- those at Guantanamo and those who may be captured in the future -- would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge.

Officials argue that the plan would give detainees more rights and allow them a better chance to one day end their indefinite incarceration than they have now at Guantanamo.

But some senior Democrats see long-term detention as tantamount to reestablishing the Guantanamo system on U.S. soil. "I think this could be a very big mistake, because of how such a system could be perceived throughout the world," Sen. Russ Feingold, D-Wis., told Holder.

One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaida operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities, or returned to their home country.

"Going forward, unless it's an extraordinary case, you will not see new transfers to the U.S. for indefinite detention," the official said.

Instituting long-term detention through an executive order would leave Obama vulnerable to charges that he is willing to forsake the legislative branch of government, as his predecessor often did. Bush's detention policies suffered successive defeats in the courts in part because they lacked congressional approval and tried to exclude judicial oversight.

"There is no statute prohibiting the president from doing this through executive order and so far courts have not ruled in ways that would bar him from doing so," said Matthew Waxman, who worked on detainee issues at the Defense Department during Bush's first term. But Waxman, who waged an internal battle inside the Bush administration for more congressional cooperation, said the "courts are more likely to defer to the president and legislative branch when they speak with one voice on these issues."

See more stories tagged with: guantanamo, barack obama, george w. bush, russ feingold, military commissions, eric holder, indefinite detention, ben labolt, national security court, khaled sheik mohammed

Dafna Linzer was a national security reporter for The Washington Post, covering intelligence and nonproliferation, from 2004 to 2008.

Peter Finn is the Moscow correspondent for The Washington Post.

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