September 28, 2009
By Charles "Cully" Stimson
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
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
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
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
The president won't release detainees; he'll sit back and let the courts to do it for him. 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.
Charles "Cully" Stimson
Manager, National Security Law Program and Senior Legal Fellow
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