Indefinite Detention By Executive Order: Another Looming Disappointment for the Left?

In many essays on this blog, I have analyzed national security policies of the Obama administration that conflict with Obama's campaign promises. In most instances, these policies also replicate practices of the Bush administration that received vehement condemnation from the Left. One of those policies involves the practice of indefinite detention.

Bush's practice of detaining individuals without charges or a trial received passionate criticism from the Left. Obama also condemned this practice during his presidential campaign. But after Obama became president, members of his administration soon indicated that he would not stray too far from Bush on this issue.

Kinder, Gentler Indefinite Detention Is Still Unlawful
Recently, Obama himself confirmed that his administration would detain some suspected terrorists without prosecuting them in federal courts or in a military tribunal. Obama described the individuals as persons who "cannot be prosecuted for past crimes. . .but who nonetheless pose a threat to the security of the United States." Obama, however, stated that he would collaborate with Congress to create a system that utilized judicial and Congressional oversight, required periodic review, and that did not depend upon the will of one person:

We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. . . .

In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Although Obama's statement suggests a strong commitment to the rule of law, his argument that the United States can simply detain people who have not committed a criminal act is an anathema to the notion of due process. And simply saying that the detention will prevent them from "carrying out an act of war" does not prove that they ever engaged in or will engage in warfare against the United States. Certainly, many law enforcement officers would like the authority to detain individuals they believe might one day possibly commit some crime. Due process, however, does not allow this to occur.

Furthermore, Bush's practice of indefinite detention rightfully outraged liberals. Obama's stance is equally outrageous, however, and after initial reluctance, many progressive supporters of Obama have finally started criticizing the president's national security policies.

Nuance: Working With Congress Does Not Mean Passing Legislation
Recent reports indicate that Obama might claim detention authority by executive order -- rather than purusing authorization by statute. Sources within the Obama administration, however, say that using an executive order to outline detention policy would not betray the president's promise to "work with Congress to develop an appropriate legal regime." According to the New York Times, these officials explain that: "[W]orking with Congress [does] not necessarily mean passing legislation. . .[and that] Obama. . .would consult with lawmakers even if he decided to enact his system through executive order."

But implementing a detention policy by executive order alone would affirm Bush's assertion that the president has the power of indefinite detention. Earlier this year, the Obama administration strained to distinguish its own stance on this issue from Bush's by stating that the president would detain individuals pursuant to legislation authorizing the war against Al Qaeda and the international law of war. As I previously argued, however, the notion that this "shift" significantly retreats from the Bush administration's practices is vastly overstated (if not completely wrong). Although reports suggest the Obama administration might utilize an executive order to avoid wrangling with Congress over the details, this would tacitly admit that the president does not need authorization from Congress, and it would also replicate Bush's view of strong executive power in this setting.

* For excellent coverage of this issue, see Glenn Greenwald's column on Salon.com.

* TalkLeft has also addressed the issue: Obama Considering Unconstitutional Imposition Of Preventive Detention Policy

* For prior articles related to indefinite detention on Dissenting Justice, see:

Obama on National Security: I Am Doing the Right Things; I Have Not Broken Campaign Promises

When Will Obama Close the Guantanamo Bay Prison?

Et Tu, Olbermann? Some Liberals Finally Realize That for Certain Issues, "Change" Actually Means "More of the Same"

Change Alert: Indefinite Detention in the USA -- Not Guantanamo Bay

So Exactly When Does "Change" Begin, Take 45345234524523452452: Elena Kagan Says Government Can Indefinitely Detain Terrorism Suspects