In May, some members of the task force asked two outside experts, Kate Martin and Ken Gude of the Center for National Security Studies
and the Center for American Progress to submit a memorandum on the Thailand question and the scope of the president's authority.
For Gude and Martin, the question of whether the president has the authority to indefinitely detain untriable Guantanamo Bay-held combatants is moot at this point. Hesitatingly, they concede that the decisions made by the Bush administration have tied Obama's hands very snugly.
"We respectfully urge that
consideration of such
cases should not be the basis for adopting far-reaching policies with
substantial counterterrorism costs that are likely to far outweigh any
short-term benefits from continuing to detain such individuals," they
argue in the brief, which was obtained by the Atlantic.
But they part company on the critical question of whether the president needs any additional authority. They do not believe
there is anything terribly magical about terrorism so as to jerry-rig
any new court review or supra-congressional authority onto the existing
cannons of law and practice. Any preventative detention system, they
argue, is not only "illegitimate" from a legal perspective, it will be
seen as such by the world, thereby exacerbating the climate that
allows terrorists to recruit against America.
So what can the president do in the case of the Thai would-be terrorist? Three options. He can ask the Thai government to detain and try the man. America's image as the world's antiterror cop easily morphed into something much worse: the image of America being at war with Muslims. Having other countries participate in the trials and detentions of terrorist suspects would internationalize the concept of antiterrorism, and it would prevent these countries from using America's eagerness to fight terror as a way to kick out some of their undesirable political dissidents.
Or, the President could instruct the FBI to build a case -- a parallel case -- against the suspect. This would take more time and lots of resources, but it would certainly legitimize the capture and detention of a dangerous person. The FBI is, in fact, working to build many cases like this right now because of a similar imperative to try as many Gitmo detainees in federal courts as possible.
Or, the President could try something novel: the CIA, or the FBI, could inform the terrorist that he or she is being monitored. Britain has employed this tactic on occasion, and is has stopped many plots. It's dangerous, of course, and may only lead to the terrorist in question becoming more secretive and paranoid. But it's an option.
The task force will present its conclusions to the White House in a few weeks. Most likely, it will outline a variety of options consistent with the president's charge. Where is Obama leaning? The answer depends on whether he believes that modern terrorism is a sui generis threat; whether the granting or codifying of a new executive detention authority will be abused in the wrong hands; whether the current law is sufficient to deal with the problem. It also matters, quite frankly, who gives him advice.
My sense is that the President hasn't decided yet. That presents an opportunity for everyone -- lawyers, activists, ordinary citizens -- to influence one of the most important decisions Obama will make.