Adam Serwer wrestles with indefinite detention:
For the past two years we've had indefinite detention without periodic review. Now some of the detainees who have lost their habeas cases are going to get a chance to challenge their detention again, and they have the option of being represented by council. The argument for an executive order is that going to Congress might make the current process significantly worse, since Republicans have indicated a desire to send more people to Gitmo and to give the president to indefinitely detain American citizens.
So now that there's no question that some people will be detained indefinitely, the people who lose their habeas cases should have a chance to advocate for their freedom.
My fundamental concern has always been humane treatment. When Gitmo was a torture camp, it was indefensible. The stigma remains, which is why those remaining prisoners should, if we want to help ourselves in the war on jihadism, be dispersed in maximum security jails. But the torture that truly stained Gitmo is over. Those who crow that the Obama administration has retained the Bush system omit this central fact. They also omit the fact that Congress has tied Obama's hands. They also omit that the very dilemma - prisoners with no formal charges, no serious evidence, and radicalized by torture and unjust imprisonment - was created by Bush in the first place.
I'd release those against whom there is no credible evidence. But I can understand the security and political concerns of releasing men who could join Jihadists in, say, Yemen.