The Politics Of The Latest GMTO Decisions

To take care of the remaining prisoners at Guantanano Bay -- and to figure out how to hold them and pay for their detentions after Guantanamo closes in January, the Obama administration needs Congress to appropriate some money and to recognize a few untested claims of legal authority.

That's the policy underneath the politics of the latest administration decision on detention policy. Advocacy groups are cheering what they take to be a new tack by the administration, but what they've hailed turns out to be the legal equivalent of a stay: for now -- for now -- the administration doesn't think it needs any new authority to close the Guantanamo Bay ledger.

A few months ago, the Obama administration decided to codify the authority to hold prisoners at Guantanamo Bay by referring in court papers to the 2002 Authorization for the Use of Military Force against Al Qaeda and associated terrorists. In doing so, they backed away from asserting that the president has the inherent authority to detain and dispose of these prisoners. This little noticed change in what Al Gore might have called the controlling legal authority was noted by advocacy groups and by the courts, who modified its expression but left it mostly intact. Even less remarked on at the time was that the detention authority claimed by the administration was limited to the Al Qaeda/9/11 nexus -- and specifically, those detainees held at Guantanamo Bay -- and specifically did not address whether the president believed he had the authority to detain prisoners indefinitely, or on his own accord. In the case of GTMO, he might simply have been choosing not to exercise that authority.

Advocacy groups noticed. And they became nervous after press reports suggested that the administration was considering an executive order to claim inherent detention authority so that they could keep Guantanamo detainees in custody until they were either tried in federal court or disposed of in another way by the military and civilian justice systems. The question: if GTMO closed before the detainees were all released or jailed, could the administration still hold them? Congress was balking at the administration's trial balloon to hold some of the detainees in American terrestrial prisons -- threatening to pass legislation to prevent it, even.
I think there is a way to advance this story...

Here, then, is what the administration is going to tell Congress about its plan:

- they're going to bring some of the remaining detainees into the U.S. for trial in federal court.

- they're going to prosecute some others using military commissions.

- they're going to send others to allied countries for release.

And the rest are going to be categorized as military detainees and will be sent to a military facility outside the U.S. where it's legal to hold prisoners. The Secretary of Defense will figure out where this will be. The administration has looked at various options, including Guam. BTW: I initially thought that the administration would transfer a lot of prisoners to overseas prisons, like Bagram, but that's akin to waving a red flag at the courts to strike down the administration's detention authority there.

Anyway, short of a mass transfer to Bagram, the Democrats in Congress will vote to fund this. Some Republicans will make mischief and demand that the executive branch assert more authority, but the administration will respond that current law is sufficient to deal with detainees.

What about the future? What about new detainees? This policy will influence that one, but there remains a possibility that the administration will claim some form of detention authority in the future. Still, having respected the courts on the habeas corpus rulings, it's hard to see the administration ignoring the courts on the scope of its detention authority.