The Obama Administration announced last week that it no longer plans to seek new legislation creating a framework for preventive detention of Guantanamo Bay detainees.\u00a0 The move represents a departure from the plan for such legislation laid out by President Obama in his May 2009 speech at the National Archives.\u00a0 In that speech, the President described a category of detainees at Guantanamo Bay \u201cwho cannot be prosecuted yet who pose a clear danger to the American people.\u201d\u00a0 He added:<\/p>\n
If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.\u00a0 And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.<\/p><\/blockquote>\n
Yet now the Administration has scrapped the plan to \u201cdevelop an appropriate legal regime\u201d with Congress.\u00a0\u00a0 Instead, it plans to hold the approximately 50 Guantanamo detainees who fall into this category pursuant to the Authorization for Use of Military Force (AUMF) passed by Congress shortly after 9\/11.\u00a0 The position that the AUMF authorizes the detention of suspected terrorists without charges was one adopted by the Bush Administration and buttressed by Justice O\u2019Connor\u2019s plurality opinion in Hamdi v. Rumsfeld<\/em> in 2004.\u00a0 In that opinion, Justice O\u2019Connor wrote:<\/p>\n
We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the necessary and appropriate force Congress has authorized the President [through the AUMF] to use. 542 U.S. 507, 518 (2004).<\/p><\/blockquote>\n
Reaction to the Administration\u2019s decision has been mixed.\u00a0 Many civil liberties and human rights advocates are relieved by the decision, fearing that any legislation would institutionalize and legitimize the system of detention.\u00a0 Moreover, these parties fear involving Congress, which has been consistently hawkish on issues concerning Guantanamo Bay and detainee rights.\u00a0 Others, such as Benjamin Wittes of the Brookings Institution, are troubled by the Administration\u2019s decision.\u00a0 Wittes, who titled his Washington Post<\/a> op-ed on the decision as \u201cObama\u2019s Dick Cheney Moment,\u201d writes that legislation is needed to replace the current system in which rules defining detention are unclear, ever-shifting and ultimately decided ad hoc by the judiciary (i.e. Justice Anthony Kennedy).<\/p>\n
While the merits of the decision to forego legislation are to be debated, it is interesting to wonder why the Administration has suddenly shifted strategy.\u00a0 One possibility is that the Administration observed the hard-line stance that Congress was taking on the transfer of prisoners from Guantanamo and decided it wanted to limit Congress\u2019 influence on any issue concerning Guantanamo detainees.\u00a0 In addition, the Administration may have decided that at a time when it continues to receive criticism for the probe into potential prisoner abuse by CIA agents, it does not want to have to stake out another high profile position in favor of detainee rights.\u00a0 An entirely distinct possibility is that the Administration has come to value the flexibility and discretion afforded by the nebulous standards of the current system.\u00a0 After all, the current system vests decision-making power within the executive branch, and it is the rare occurrence when that branch chooses to cede such power.<\/p>\n
For more information, see the New York Times<\/a> <\/a><\/strong>and an op-ed by Glenn Greenwald at Salon<\/a>.\u00a0 For a transcript of President Obama\u2019s speech at the National Archives, see here<\/a>.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"
The Obama Administration announced last week that it no longer plans to seek new legislation creating a framework for preventive detention of Guantanamo Bay detainees.\u00a0 The move represents a departure from the plan for such legislation laid out by President Obama in his May 2009 speech at the National Archives.\u00a0 In that speech, the President described a category of detainees at Guantanamo Bay \u201cwho cannot be prosecuted yet who pose a clear danger to the American people.\u201d\u00a0 He added: If and when we determine that the United States must hold individuals to keep them from carrying out an act of 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