[Marxism] Neo-Bush

[Louis Proyect <lnp3@xxxxxxxxx>]

http://www.washingtonpost.com/wp-dyn/content/article/2009/06/26/AR2009062603361.html
White House Weighs Order on Detention
Officials: Move Would Reassert Power To Hold Terror Suspects Indefinitely

By Dafna Linzer and Peter Finn
ProPublica and Washington Post Staff Writer
Saturday, June 27, 2009

Obama administration officials, fearing a battle with Congress that 
could stall plans to close the U.S. prison at Guantanamo Bay, are 
crafting language for an executive order that would reassert 
presidential authority to incarcerate terrorism suspects indefinitely, 
according to three senior government officials with knowledge of White 
House deliberations.

Such an order would embrace claims by former president George W. Bush 
that certain people can be detained without trial for long periods under 
the laws of war. Obama advisers are concerned that an order, which would 
bypass Congress, could place the president on weaker footing before the 
courts and anger key supporters, the officials said.

After months of internal debate over how to close the military facility 
in Cuba, White House officials are increasingly worried that reaching 
quick agreement with Congress on a new detention system may be 
impossible. Several officials said there is concern in the White House 
that the administration may not be able to close the prison by the 
president's January deadline.

White House spokesman Ben LaBolt said that there is no executive order 
and that the administration has not decided whether to issue one. But 
one administration official suggested that the White House is already 
trying to build support for an order.

"Civil liberties groups have encouraged the administration, that if a 
prolonged detention system were to be sought, to do it through executive 
order," the official said. Such an order could be rescinded and would 
not block later efforts to write legislation, but civil liberties groups 
generally oppose long-term detention, arguing that detainees should be 
prosecuted or released.

The Justice Department has declined to comment on the prospects for a 
long-term detention system while internal reviews of Guantanamo 
detainees' cases are underway. One task force, which is assessing 
detainee policy, is expected to complete its work by July 21.

In a May speech, President Obama broached the need for a system of 
long-term detention and suggested that it would include congressional 
and judicial oversight. "We must recognize that these detention policies 
cannot be unbounded. They can't be based simply on what I or the 
executive branch decide alone," he said.

Some of Obama's top legal advisers, along with a handful of influential 
Republican and Democratic lawmakers, have pushed for the creation of a 
"national security court" to supervise the incarceration of detainees 
deemed too dangerous to release but who cannot be charged or tried.

But the three senior government officials said the White House has 
turned away from that option, at least for now, because legislation 
establishing a special court would be difficult to pass and likely to 
fracture Obama's party. These officials, as well as others interviewed 
for this article, spoke on the condition of anonymity because they were 
not authorized to speak publicly about internal deliberations.

On the day Obama took office, 242 men were imprisoned at Guantanamo. In 
his May speech, the president outlined five strategies the 
administration would use to deal with them: criminal trials, revamped 
military tribunals, transfers to other countries, releases and continued 
detention.

Since the inauguration, 11 detainees have been released or transferred, 
one prisoner committed suicide, and one was moved to New York to face 
terrorism charges in federal court.

Administration officials said the cases of about half of the remaining 
229 detainees have been reviewed for prosecution or release. Two 
officials involved in a Justice Department review of possible 
prosecutions said the administration is strongly considering criminal 
charges in federal court for Khalid Sheik Mohammed and three other 
detainees accused of involvement in the Sept. 11, 2001, attacks.

The other half of the cases, the officials said, present the greatest 
difficulty because these detainees cannot be prosecuted in federal court 
or military commissions. In many cases the evidence against them is 
classified, has been provided by foreign intelligence services or has 
been tainted by the Bush administration's use of harsh interrogation 
techniques.

Attorney General Eric H. Holder Jr. agreed with an assessment offered 
during congressional testimony this month that fewer than 25 percent of 
the detainees would be charged in criminal courts and that 50 others 
have been approved for transfer or release. One official said the 
administration is hoping that as many as 70 Yemeni citizens will be 
moved, in stages, into a rehabilitation program in Saudi Arabia.

Three months into the Justice Department's reviews, several officials 
involved said they have found themselves agreeing with conclusions 
reached years earlier by the Bush administration: As many as 90 
detainees cannot be charged or released.

The White House has spent months meeting with key congressional leaders 
in the hope of reaching agreement on long-term detention, although 
public support for such a plan has wavered as lawmakers have sought to 
prevent detainees from being transferred to their constituencies.

Lawyers for the administration are now in negotiations with Sens. Carl 
M. Levin (D-Mich.) and Lindsey O. Graham (R-S.C.) over separate 
legislation that would revamp military commissions. A senior Republican 
staff member said that senators have yet to see "a comprehensive, 
detailed policy" on long-term detention from the administration.

"They can do it without congressional backing, but I think there would 
be very strong concerns," the staff member said, adding that "Congress 
could cut off funding" for any detention system established in the 
United States.

Concerns are growing among Obama's advisers that Congress may try to 
assert too much control over the process. This week Obama signed an 
appropriations bill that forces the administration to report to Congress 
before moving any detainee out of Guantanamo and prevents the White 
House from using available funds to move detainees onto U.S. soil.

"Legislation could kill Obama's plans," said one government official 
involved. The official said an executive order could be the best option 
for the president at this juncture.

Under one White House draft that was being discussed this month, 
according to administration officials, detainees would be imprisoned at 
a military facility on U.S. soil, but their ongoing detention would be 
subject to annual presidential review. U.S. citizens would not be held 
in the system.

Such detainees -- those at Guantanamo and those who may be captured in 
the future -- would also have the right to legal representation during 
confinement and access to some of the information that is being used to 
keep them behind bars. Anyone detained under this order would have a 
right to challenge his detention before a judge.

Officials say the plan would give detainees more rights and allow them a 
better chance than they have now at Guantanamo to one day end their 
indefinite incarceration.

But some senior Democrats see long-term detention as tantamount to 
reestablishing the Guantanamo system on U.S. soil. "I think this could 
be a very big mistake, because of how such a system could be perceived 
throughout the world," Sen. Russell Feingold (D-Wis.) told Holder.

One administration official said future transfers to the United States 
for long-term detention would be rare. Al-Qaeda operatives captured on 
the battlefield, which the official defined as Iraq, Afghanistan, 
Pakistan and possibly the Horn of Africa, would be held in battlefield 
facilities. Suspects captured elsewhere in the world could be 
transferred to the United States for federal prosecution, turned over to 
local authorities or returned to their home countries.

"Going forward, unless it's an extraordinary case, you will not see new 
transfers to the U.S. for indefinite detention," the official said.

Instituting long-term detention through an executive order would leave 
Obama vulnerable to charges that he is willing to forsake the 
legislative branch of government, as his predecessor often did. Bush's 
detention policies suffered defeats in the courts in part because they 
lacked congressional approval and tried to exclude judicial oversight.

"There is no statute prohibiting the president from doing this through 
executive order, and so far courts have not ruled in ways that would bar 
him from doing so," said Matthew Waxman, who worked on detainee issues 
at the Defense Department during Bush's first term. But Waxman, who 
waged a battle inside the Bush administration for more congressional 
cooperation, said that the "courts are more likely to defer to the 
president and legislative branch when they speak with one voice on these 
issues."

Tawfiq bin Attash, who is accused of involvement in the bombing of the 
USS Cole in 2000 and who was held at a secret CIA prison, could be among 
those subject to long-term detention, according to one senior official.

Little information on bin Attash's case has been made public, but 
officials who have reviewed his file said the Justice Department has 
concluded that none of the three witnesses against him can be brought to 
testify in court. One witness, who was jailed in Yemen, escaped several 
years ago. A second witness remains incarcerated, but the government of 
Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in 
U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he 
was subjected to harsh interrogation while in CIA custody.

"These issues haven't morphed simply because the administration 
changed," said Juan Zarate, who served as Bush's deputy national 
security adviser for counterterrorism and is now at the Center for 
Strategic and International Studies in Washington.

"The challenge for the new administration is how to solve these legal 
questions of preventive detention in a way that is consistent with the 
Constitution, legitimate in the eyes of the world and doesn't create 
security loopholes that cause Congress to worry," Zarate said.

ProPublica is an independent, nonprofit newsroom that produces 
investigative journalism in the public interest. Washington Post staff 
researcher Julie Tate contributed to this report.


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