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Punting National Security to the Judiciary

By

In a stunning display of political cowardice, the Obama administration has decided not to seek specific congressional authorization for a prolonged detention statute for Guantanamo Bay detainees deemed too dangerous to set free. It's the latest troubling flip flop by the president, an utter abdication of the lofty promises he made during his much-heralded National Archives Speech just this May.

This decision not only weakens U.S. detention policy, it will regrettably serve as an invitation to the courts to expand their role in national-security affairs -- an area that is properly the province of the executive and legislative branches.

During the 2008 campaign, candidate Obama constantly criticized the Bush administration for "going it alone" and creating a law-free zone for the terrorist detainees at Guantanamo. He rebuked President Bush for his cowboy mentality, and his administration for making a "series of hasty decisions" after 9/11.

He led us to believe that he would take a different approach with respect to Guantanamo, putting America on a stronger legal footing while re-establishing our "tarnished" image abroad. Turns out it was just another feel-good speech, soon forgotten.

Addressing Bush's "ad hoc legal approach" at Gitmo in his National Archives speech, Obama said, "I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo." He continued, promising to "reshape these [legal] standards to ensure they are in line with the rule of law . . . Our goal is to construct a legal framework for Guantanamo detainees -- not to avoid one."

Yet yesterday's announcement that he won't seek legislation specifically authorizing prolonged detention means he is embracing the very thing he was most critical of, and purposefully avoiding that which is most necessary: establishing a durable, long-term, and sustainable framework for legal detention, not just for detainees currently at Guantanamo, but for future high-value captures outside of Afghanistan.

Instead, he will rely on the current congressional Authorization of Use of Military Force, which authorizes the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." Thus, President Obama will decide who is to be detained, where, and for how long. Yet, when addressing this very issue in his National Archives speech, President Obama asserted, "In our constitutional system, prolonged detention should not be the decision of any one man." Apparently, there is the Obama exception to the one-man prohibition.

So what is really going on here? To those of us who have either served in senior policy posts and dealt with these issues on a daily basis, or followed them closely from the outside, it is becoming increasingly clear that this administration is trying to create the appearance of a tough national-security policy regarding the detention of terrorists at Guantanamo, yet allow the courts to make the tough calls on releasing the bad guys. Letting the courts do the dirty work would give the administration plausible cover and distance from the decision-making process. The numbers speak for themselves.

Of the 38 detainees whose cases have been adjudicated through the habeas process in federal court in Washington, 30 have been ordered released by civilian judges. That is close to an 80 percent loss rate for the government, which argued for continued detention. Yet, how many of these decisions has this administration appealed, knowing full well that many of those 30 detainees should not in good conscience be let go? The answer: one.

Letting the courts do it for him gives the president distance from the unsavory release decisions. It also allows him to state with a straight face, as he did at the Archives speech, "We are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people."

No, the president won't release detainees; he'll sit back and let the courts to do it for him.

And the president won't seek congressional authorization for prolonged detention of the enemy, as he promised, because it will anger his political base on the Left. The ultra-liberals aren't about to relinquish their "try them or set them free" mantra, even though such a policy threatens to put terrorists back on the battlefield.

Moreover, the president would have to spend political capital to win congressional authorization for a prolonged detention policy. Obviously, he would rather spend that capital on other policy priorities.

Politically speaking, it is easier to maintain the status quo and let the detainees seek release from federal judges. The passive approach also helps the administration close Gitmo without taking the heat for actually releasing detainees themselves.

Practitioners, scholars, policy wonks, and experts from across the political spectrum have written about the need for a prolonged-detention legal framework. Without it, there can be no long-term solution to the vexing problem of how to incapacitate stateless terrorists during the ongoing conflict.

President Obama's decision to punt this issue will come back to bite America and our allies. It's a missed opportunity to solve the detention issue once and for all.

Charles 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 National Review

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