The Washington Post and Pro-Publica [ed note: collaboration!] report that the White House counsel's office has drafted an executive order authorizing -- or, rather, asserting, that the President has the inherent authority to detain certain classes of people indefinitely. (Update: Ben LaBolt, an Obama spokesperson, flatly denied the report to me. "There is no executive order. There just isn't one.") For what it's worth, administration officials say that the story seems to overwrite something that is common knowledge, that President Obama hasn't decided on a course of action yet, and that the task force he appointed to figure out these issues is weeks away from presenting its recommendations to the White House. It is not clear whether the draft executive order applies to detainees held at Bagram Air Force Base in Afghanistan, or in camps in Iraq, or detainees collected in future operations, or even in cases where suspected terrorists are identified in non-contiguous countries. I note, at 10:40 p.m., the Washington Post has softened the story a bit, referring to the "drafting" in the present. And the administration refuses to parse verb tenses with me -- is drafting, might draft -- those are still possible. "Have drafted" is apparently untrue.
It's true, of course, that elongated/indefinite detentions are on the table for a bunch of Guantanamo detainees; that we know because the President said as much in his May 21 speech at the National Archive. It would be prudent for the White House counsel's office to draft language asserting the president's authority. When Obama decided to locate his Guantanamo detention authority in Congress's 2002 force resolution for Afghanistan, he very plainly did not give up any implied powers that his branch possesses. It would be quite a slap in the face to Congress were the President to unilaterally assert detention authority over Guantanamo detainees.
A senior Congressional aide e-mails to add:
"Even with an executive order, they still need the funding to be released before they can incarcerate any detainees in the United States. None of the appropriations bills for fiscal year 2010 that are working their way through committee fund the closure as requested by the President. And I expect that the DoD approps bill will present a debate over continuing to bar detainees from being incarcerated in the U.S."
Don Stewart, chief spokesman for minority leader Mitch McConnell, points me to something the Kentuckian said on the floor of the Senate:
"An overwhelming bipartisan majority of the Congress disagreed with the administration's request for $80 million from Congress for the purpose of closing the detention facility at Guantanamo Bay before the administration even has a place to put the detainees who are housed there, any plan for military commissions, or any articulated plan for indefinite detention."
I think the administration still wants to work with Congress on a new policy. I also know that time is of the essence. Gitmo is going to shut down before a bunch of the trials have been completed -- or even begun. Were are the detainees awaiting trial going to go? And under what authority will be they transferred? (My guesses: Guam, and Obama's.)