What We Don't Know About Detentions

We don't know a lot about the Obama administration's detention policy, and the panel charged with coming up with a policy appears to know even less, having asked for a six month extension. But there is an urgent issue to attend to: whether the Obama administration needs to go to Congress for fresh detention authority, or whether it will rely on existing authority -- maybe under the 2001 Authorization for the Use of Military Force in Afghanistan -- to keep Guantanamo Bay prisoners confined while they await trial -- and some of them confined forever. Peter Finn, writing in the Washington Post, indicates the administration is going to Congress. Josh Gerstein in the Politico says that while they will consult Congress, they may rely on AUMF authority for detention. This isn't an academic distinction. If the administration goes to Congress, it opens up a whole new can of worms and sets the stage for codifying a new executive authority -- one that could allow the president to detain people indefinitely without trial. If, on the other hand, the administration does nothing, Congress might protest and say that its AUMF resolution does not allow the president to hold Guantanamo Bay detainees indefinitely. At some point, the administration will have to answer part of this question -- under what authority can it transfer Gimto detainees to another facility after Gitmo closes? That the president _has_ this authority is unquestioned. But where the authority comes from is an open question.