Behind Obama's Sudden Silence on Detainee Policy

The silence from the White House about the fate of the September 11th terrorists and the future of detention policy is both strategic and necessary. Necessary, because the White House has nothing to say; nothing to say because President Obama is trapped between Scylla and Charybdis -- becoming the president who codifies into law indefinite detention authority or becoming the president who failed to come up with a workable, sustainable national security framework. The Justice Department wants the White House to make up its mind, and soon. Obama is a mediator, and he hasn't had time to puzzle out a solution. He is uncomfortable with the options presented to him so far.

And that's where Sen. Lindsey Graham comes in. A few weeks after he was elected president, Obama received Graham and Sen. John McCain in his Chicago transition offices. "Lindsey," Obama told the senator, a reservist member of the judge advocate general corps, "I'm going to need your help on detainees." "Mr. President," Graham replied, "I'll help you out where I can."

Graham has spent the better part of the past 14 months consulting with every official responsible for a panoply of issues ranging from detention to interrogation. He is the only Republican whom the White House trusts -- even though Graham and Obama have distinctly different views about executive power and counterterrorism. From Graham's perspective, he hasn't been negotiating with the White House -- there are five different strains of thought within the West Wing alone, he thinks -- he's been providing them options. Now those options have been put to paper, leading those not involved in the process to believe that Graham and Obama (through chief of staff Rahm Emanuel) are writing legislation together.

Officials involved in these talks say that they are productive and frustrating; different parts of the executive branch have different equities in the speed with which decisions are made, Democrats in Congress are of two minds about virtually every issue, and Republicans have tacked hard to the right, bypassing Graham, who is a lone wolf.

One factor that is driving the White House is that they feel they MUST close Guantanamo. This is less important to everyone outside the White House. (The health care victory may take some of the pressure off to deliver on promises, and it may show them the value of sticking to your guns and having patience, but physically closing Guantanamo is the 800 pound-gorilla in the room, with direct bearing on all the other decisions like KSM trial, habeas standards, detention outside trials.

The Justice Department has acted with only partial guidance from the White House, but the less cover it will get for its decisions on whether to try the 9/11 conspirators in federal court. Delay means that Congress -- or Republicans in Congress -- can force a delay, force the hand of the Attorney General, merely by refusing to budge from the status quo.

There are about 30 Guantanamo detainees who have been granted habeas corpus status. What that means is up to the president and Congress.  There are high value detainees at a secret facility on the grounds of Bagram Air Force base. There may be some detainees left over from confinement in Iraq. And then there are the 60+ detainees who cannot be tried and cannot be released, according to the administration's own rigorous review of their cases.

When Obama spoke about national security at the National Archives a year ago, he assumed that he would have to make the God-like detention decision only a few times. Five dozen -- he's still wrestling with the enormity of that.  And who wouldn't want the president to spend time thinking about that?

The president has been thinking about health care for the past month. He's now going to be thinking about Iran sanctions and nuclear security issues and financial regulatory reform -- and possibly even the announcement, in a few weeks, that Justice John Paul Stevens is retiring, which would and will distract the White House's cadre of lawyers.

So April is out. And truth be told, anytime Democrats talk about detainees and not jobs or spending, political capital post-health care victory fritters away. The campaign committees hate when the detainee issues flare up, and they've made it known that it would be nice if the White House doesn't do anything to add wood to the fire until after the midterms. But that's when Obama's re-election formally begins, and he'd better have a framework by then, because if he doesn't, Republicans are going to pound him.

In the meantime, all anyone has is rumors. Very few members of Congress have seen the draft of Graham's legislation, and Graham's office won't say what it contains. No decision of any sort has been made to transfer anyone to Bagram. The Justice Department continues to work to repatriate detainees and fight legal battles. The Department of Defense continues to detain people on the battlefield in Afghanistan. Military tribunals haven't been tested in court.

And so on.

These matters are urgent. The time to build a consensus is limited.

So if this delay this seems disturbing, once can make a case that it shouldn't be. This is precisely the type of issue that requires deep thought and patience and consultation. And that's what Obama will take the time to do before he makes up his mind.

Thumbnail photo credit: Wikimedia Commons

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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