Fixing Detention

The Obama administration performed another Friday afternoon Guantanamo news dump last week, indicating that it will probably maintain administrative military detention of combatants under a forthcoming executive order.


This is unnecessary executive unilateralism. As Benjamin Wittes and Jack Goldsmith point out in today’s Washington Post, this is a debate that ought to be held in Congress.


This would not be a tough push for Obama. The Obama administration already amended its claim of authority in a filing with the District Court for the District of Columbia, the judicial body sorting through the detainees remaining at Gitmo. Convincing Congress to ratify this decision should not be hard; the differences between the Bush administration’s “enemy combatant” criteria and what the Obama administration defines as “substantially supporting” Al Qaeda and the Taliban are minute. As I wrote in a previous post on detention definitions and decisions, the actions proscribed under these two standards and the activities constituting the “direct participation in hostilities” standard used in the case of Salim Hamdan are nearly identical.


The only positive news about the pending announcement is that the creation of a national security court specializing in detention decisions is probably not in the cards. As I have said before, national security court proposals play the propaganda game the way terrorists want to and often revive the prospect of domestic preventive detention of terror suspects, to include American citizens who would otherwise be charged with a substantive crime for domestic acts. The Cato Institute filed an amicus brief opposing this practice in the Padilla case.