Is Obama Preparing to Fight the Republicans' Efforts to Handcuff Him on Gitmo?
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Several advisers were pushing for a broader statement that would also take issue with provisions related to detainee transfers. Obama has twice issued signing statements claiming that legislative provisions interfered with his constitutional authority to conduct foreign relations and could do so again. But there is some concern that the White House is on less firm ground in that area. The bill, while making future transfers difficult, does not ban them outright.
"There is an honest debate right now, centered primarily inside the White House Counsel's office, and among a number of top staff," said one official who spoke on the condition of anonymity. "The question is: Can we work with some of this stuff and, if not, how sharply do we make that point."
The president could veto the spending bill. But officials said the White House will not block legislation on military pay and benefits, especially after the military's support for repealing "Don't Ask, Don't Tell," legislation in December. Spokesmen at the White House and the National Security Council did not respond to requests for comment.
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.
In a May 2009 speech at the National Archives, Obama laid out a pathway for dealing with the 240 detainees then held at Guantanamo .
A small number would be confined indefinitely without charge or trial, but the great majority would have their status resolved by civilian or military trials or outright release. Two years later, there is no clarity on any of those tracks. No formal charges have been brought against the three dozen men designated for eventual trial. Others long cleared to return home languish in custody in part because of the administration's self-imposed moratorium on transfers to Yemen.
In effect, detainees face indefinite prosecution, and indefinite release -- concepts unknown before Obama's presidency. In the interim, the number of Guantanamo inmates designated for open-ended detention has grown while the number who await trial has declined.
An executive order would deal in part with some of those cases. Currently, the draft order would provide a full review process for the 48 detainees in the indefinite detention category -- suspects the administration will not charge nor free. Those detainees would have access to lawyers and could challenge their detention and some of the evidence against them. The order also envisions a review of potential prosecution cases to determine which are still viable and in what setting. But the detainees in that category and those in all other categories have no way to challenge those determinations.
"If the executive order only applies to the 48 detainees that the administration says they are detaining indefinitely, then that is a failure to acknowledge reality," said Laura Pitter, a lawyer with Human Rights Watch. "There are 174 detainees still at Guantanamo and whether the administration says they will be tried, detained or released, they are in fact indefinitely detained and have been for a long time." Human Rights Watch, along with other civil rights groups, opposes indefinite detention. "The administration needs to either prosecute them or release them," Pitter said.