The Washington Post reports:
The Obama administration has decided not to seek legislation to establish a new system of preventive detention to hold terrorism suspects and will instead rely on a 2001 congressional resolution authorizing military force against al-Qaeda and the Taliban to continue to detain people indefinitely and without charge, according to administration officials...
The administration’s decision avoids a potentially rancorous debate that could alienate key allies at a time when President Obama needs congressional and public support… The administration has concluded that its detention powers, as currently accepted by the federal courts, are adequate to the task of holding some Guantanamo Bay detainees indefinitely.
There is strong bi-partisan recognition that U.S. detention policy must be placed on a legally sustainable long-term footing. At Brookings Senior Fellow for Governance Studies Ben Witttes has written a A Model Law for Terrorist Incapacitation while Heritage’s Senior Legal Fellow Cully Stimson has long called for a durable legal detention framework.
During the campaign, then-candidate Barack Obama often criticized President Bush for “going it alone” and just this past May, President Obama promised: “I will work with Congress and members of both parties, as well as legal authorities across the political spectrum, on legislation to ensure that these commissions are fair, legitimate, and effective.”
The Obama administration’s decision not to seek congressional authorization for military detention exposes a lack of political courage to stare down the extremists in his own party and do the right thing for American security. This is the ultimate flip-flop and will have dangerous consequences for our national security. As Commander in Chief, the President does have the legal authority to detain the enemy during wartime, especially considering the broadly-worded congressionally-approved Authorization for Use of Military Force, in place since 2001.. However, given the courts’ micromanaging of virtually every aspect of detention policy, this decision not to seek a congressional statute will result in continued unnecessary litigation.
More importantly, this decision cedes to the courts the ultimate decision of whom to detain, and whom to release, and will result in most Guantanamo detainees being released by federal judges - the administration’s goal all along.