July 8, 2009
By Charles "Cully" Stimson and David B. Rivkin
The Obama administration waited until 5:45 p.m. on a Friday in
late June to float the idea that it is considering an executive
order authorizing prolonged detention of captured enemy
The announcement was timed to run when most Washingtonians were
tippling cocktails or en route to the beach to avoid expending much
political capital on the issue. This approach won't work.
The chief problem is that in the course of shutting down the
detention facility at Guantanamo Bay, President Obama has
discovered, just like President Bush before him, that there are no
easy answers to the question of what to do with detainees suspected
of being highly trained terrorists.
For those detainees who cannot be safely tried or transferred to
third countries, the best option, probably the only option, is a
military detention system (or, as Mr. Obama calls it, "prolonged
Like Mr. Bush before him, Mr. Obama has the instinct to go it
alone, working by executive order and without any input from
Congress. Mr. Obama's advisers, The Washington Post reports, are
concerned that pursuing legislation could give "Congress too much
control over the process."
They have good reason to be concerned, given Congress'
unwillingness to confront the issue head-on. Congressional
Democrats, in particular, have been long on criticism but short on
solutions. They have rejected release, incarceration in the United
States and seemingly any kind of long-term detention policy,
whether centered in Guantanamo or anywhere else.
What the Democrats need, and what the president has yet to give
them, is a refresher course on the law of war. The Geneva
Conventions and customary laws of war authorize the detention of
the enemy during wartime. The United States is at war; both Mr.
Bush and Mr. Obama agree on that fact. Some of our enemies are
detained at Guantanamo Bay and need to be held for the foreseeable
future while we prosecute this war against al Qaeda, the Taliban
and their allies.
Contrary to the claims of the American Civil Liberties Union and
other activist groups, there is no Legal requirement to try these
enemies or set them free. That's a criminal law concept, and it is
not part of the law of war. Mr. Obama now understands this, but
will his former colleagues in Congress?
Recall that Democrats beat up the Bush administration for years
about its detention policies, its "go it alone" mentality and its
purported failure to adhere to the Geneva Conventions. Will those
positions flip now that the White House has changed hands? So far,
Instead, the Democrats block funds to close Guantanamo or
transfer any detainees to the United States. They demand that the
president give them advance notice of any impending transfers to
the United States for criminal prosecution. Of course, some of
these members of Congress are the same ones who, during the Bush
administration, claimed that the detainees at Guantanamo weren't
dangerous and that we had all the wrong people there, anyway.
So the president is probably right to recognize that legislating
military detention would be a heavy lift.
But that doesn't mean he has a choice in the matter. After
Rasul, Hamdi, Hamdan and last year's Boumediene, it's clear that
the Supreme Court is wary of the war on terrorism and especially
wary of detainee policy by order of the executive.
There's no reason to believe the court would ultimately uphold
any plan hatched by the Obama administration alone, short of
immediate criminal trial or immediate release.
The president, of course, is well aware of this. The cynical
case for detention by executive order is that it will let the
president demonstrate leadership on the issue while giving him
political cover for the eventual release or resettlement in the
United States of all the terrorist detainees. It buys him some
time, as the cases wind through the courts, before that
But kicking the can down the road may not work this time if the
courts decide enough is enough. That could happen fast, and it
wouldn't leave the president many options.
The only viable option then would be for Mr. Obama to go all in
on this issue. He should challenge Congress to devise a system of
military detention for those few captured fighters in the war on
terrorism who cannot be prosecuted or let go. This will take
political capital, lots of it, but there's no other choice if the
president takes seriously his duty to protect the American
David B. Rivkin Jr. is a partner in the D.C. law offices of
Baker Hostetler LLP and a co-chairman of the Center for Law and
Counterterrorism at the Foundation for Defense of Democracies.
"Cully" D. Stimson is a Senior Legal Fellow at the
Heritage Foundation, and a former Deputy Assistant Secretary of
Defense for Detainee Affairs in 2006-2007.
First Appeared in the Washington Times
The Obama administration waited until 5:45 p.m. on a Friday in late June to float the idea that it is considering an executive order authorizing prolonged detention of captured enemy combatants.
Charles "Cully" Stimson
Manager, National Security Law Program and Senior Legal Fellow
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