Obama, Executive Orders and Detention: What's Really Going On

A week ago on Friday, the national security world shook with news, reported by the Washington Post and ProPublica, that the Obama administration was drafting an executive order that would codify or restate the president's authority to indefinitely detain those captured in war. I was skeptical: though I think Obama believes that the executive has such authority, he has, publicly and privately, argued that a solution to the question of the Guantanamo detainees -- and to the larger, more important question of the president's authority to pre-emptively detain ostensible terrorists -- must be deliberative in process and must involve a "buy in" from all three branches of government. White House officials denied that such an order was to be imminently issued, although they did not deny the gist of the first report, which was that the idea was (at the very least) being floated. A few days ago, Obama closed off that particular avenue, telling the AP that "the American people and Congress, in conjunction with my administration...[must]...come up with a structure that is not only legitimate in the eyes of our constitutional traditions, but also in the eyes of the international community."

What's going on here? I think we -- and I mean the press and even the experts -- are conflating several issues at once.

1. The critical short term problem Obama faces is where to put Guantanamo detainees who are awaiting trial when the facility is closed next January. The administration's executive order, I'm told, related solely to this question: it would restate Obama's authority to hold Gitmo detainees after Guantanamo closes. The executive order would cite Congress's 2002 military force resolution as the grantor of said authority; Obama would need the authority to temporarily move the detainees while they awaited their military tribunals or federal court trials.

2. Of course, any executive order would also apply, at least in the short term, to the detainees who cannot be tried, a category that the administration has accepted, and a fact of life even for some of Obama's toughest civil liberties critics. The EO would reassert authority to keep these folks contained until Congress (and "the American people") agree on a broader legal framework for the future.

3. The real dilemma facing Obama and policy-makers has nothing to do with Guantanamo Bay. It is much more complicated -- involving the thousands of other detainees, many of whom with seeming connections to terrorism, who are involuntarily residing at American prisons in Afghanistan and Iraq.  And beyond this: the authority of the president to indefinitely  detain a suspected would-be terrorist picked up (kidnapped or legally transferred) from a non-contiguous country. 

4. The debate about what should happen to the Guantanamo detainees is effectively closed from the standpoint of our political institutions. We know what's going to happen to many of them (other countries taking some in, some being tried (in federal or military courts) and convicted and sentenced to life in American prisons).  A few of them will be detained without trial on American soil for the rest of their natural lives. This fact is disturbing, and rightfully so, but so far as our political leaders go, it's settled.  What remains to be decided, so far as Gitmo goes, are just details. (I'm not saying that this should be, I'm just saying that, in the minds of the people who make these decisions, it is.) 

5. The grueling questions are barely on the public's radar screen, but our transponders will pick them up soon enough, particular after Guantanamo closes and American troops begin to return home en masse. It may take an incident -- some American commando raid of a terrorist lair in a foreign country -- to trigger a public debate.  I'm reasonably sure that Obama does not have answers to these questions, and is certainly nowhere close to considering an executive order to resolve them. These questions -- what our future policy will be, how tightly it binds future presidents -- are being debated by one of Obama's task forces. Members of that task force won't speak about the internal deliberations, but I'm told they are very intense, and that their recommendations -- due in a few weeks -- will reflect a variety of different inputs.