Obama's Detainee Bind

Daphne Eviatar has a clarifying article on Obama's detention policy:

Glenn Greenwald in his blog at Salon put the issue starkly: “by all accounts, this ‘war’ will not be over for decades, if ever, which means unlike for traditional POWs, who are released once the war is over these prisoners are going to be in a cage not for a few years, but for decades, if not life." Deborah Pearlstein, a research scholar at Princeton’s Woodrow Wilson School and former director of the Law and Security Program at Human Rights First, although generally less critical of the administration’s position on detention, agrees that creates a constitutional problem.

“Until the Administration can identify – and Congress enacts – a provision detailing the circumstances under which any avowed al-Qaeda member would be released, it is difficult to see the current AUMF detention regime surviving constitutional scrutiny,” she wrote in a recent post on Opinio Juris. “That is why the administration feels like it’s got to go back to Congress,” Pearlstein, who’s met with administration officials about the detention issue, told TWI last week. “So it’s not just litigating case by case.” So far, though, “it’s entirely unclear yet whether this will reach the Supreme Court on appeal from where it currently sits” in pending habeas cases, “or whether there will be another statute by the Obama administration” authorizing preventive detentions, which could ultimately be reviewed by the Supreme Court.