Saturday, June 27, 2009

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

* 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


aratina said...

And did you see the announcement of the signing statement? Correct me if I'm wrong, but apparently that means the executive branch will willfully ignore aspects of legislation they don't like. Why can't they do that for DADT?

Darren Lenard Hutchinson said...

Hi, Aratina. I never joined the throng of liberals protesting signing statements, as such. I believe that the president has the authority to comment on legislation even as he or she (one day) signs it into law. BUT, if the president or an executive agency takes action that conflicts with a federal statute, then we have a legal problem. I do not believe that the signing statement itself is unconstutional or illegal, but if the president or agency violates a statute, then the president/agency can only prevail of the executive's view of the constitution is correct.

According to the articles I read, Obama claims that he has the authority to negotiate with foreign nations and international entities free of Congressional interference. That's a pretty broad claim of power, but in international issues, the Court has given the president a great deal of latitude. BUT, with respect to spending power, Congress has a great deal of latitude as well, and Congress is not impotent on foreign policy.

The important question is: Has Congress gone too far? I doubt it. Another question: Who would litigate this issue, challenging the president? Not sure.

Darren Lenard Hutchinson said...

Update: I just read the signing statement. Here's the most important language:

However, provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

Although he fell short of saying something like "I disregard those provisions," he is basically saying just that. Well, the question remains, if he acts on this, would challenge it and how?

Kansas City said...

If these prisoners are non-Americans who arer either: (1) terrorists who would love the chance to slit any American's throat; or (2) fighters captured on the battlefield (or today's equivalent of a battlefield), why should we worry about their rights?

I would give them a fair chance to prove they don't fall within one of the above categories. Otherwise, let them stay at Gitmo until they no longer pose a threat.

Kansas City said...

On Obama, he is an exceptionally good liar, even for a politician. I love it when he claims that his new position is consistent with his old position and then makes up his old position completely different than what it actually was.

Politicians get away with this fairly often. So far, he is a master, or at least he is good enough and with favorable media treatment is not called for it.

Darren Lenard Hutchinson said...

KC -- persons captured on the battlefield can be held during the hostilities. But not all of the "captives" were captured on a battlefield.

Labelling someone "a terrorist" does not prove that the person has committed a crime. There are many violent people in the United States Far more husbands kill their wives annually in the US than the number of people who die from terrorism. There are very dangerous neo-Nazi groups in the US who would love to engage in acts of violence too. The God Hates Fags group is probaly frightening to a lot of GLBT people. But the law does not allow the government to round up people to prevent some unspecified harm or some melodramatic harm called "the chance to slit any American's throat."

Deport "terrorists"; restrict their entry; and/or track them. But holding people in prison because the president says the person might commit violence (or even simply hates the US) is a frightening concept.

It's incredible that people who are exercised because a city has tried to create a promotions scheme that is racially egalitarian in its distribution would at the same time support such a heinous denial of liberty simply because one man says so. A life sentence without a conviction is the opposite of due process.

PS: It is unclear what you think "no longer pose a threat" looks like.

Anonymous said...

""Labelling someone "a terrorist" does not prove that the person has committed a crime. ""

Isn't that the point? It's a feature of the terrorist problem. A terrorist is one that is likely to commit a crime and the crime is against a sovereign state, which is to hurt the state and destablize it. There are rules on how to treat a "soldier" on the battlefield, but none on "unlawful combatants", aka terrorists. That's the gray area. I'll leave the discussion on those Guantanamo detainees who later returned to battle to someone else.

Kansas City said...


I think the word for your argument is specious, as in no relationship between point A and point B -- "It's incredible that people who are exercised because a city has tried to create a promotions scheme that is racially egalitarian in its distribution would at the same time support such a heinous denial of liberty simply because one man says so."

Yes, one can advocate color blind employment practices and also a hard line on terrorists, without any inconsistency whatsoever.

And "racially egalitarianism?"
Egalitarianism holds that all people should be treated as equals and have the same political, economic, social, and civil rights. Doesn't that supoprt the plaintiffs in the New Haven case? They were deprived of promotions because of their race.

Overall, on the terrorist issue, it seems like you want proof of a "crime." I'm fine with that for Americans, which renders much of your response beside the point. But for non-Americans who our government in good faith believes are terrorists, I think your bar is way too high.

Overall,it is the debate over whether we should consider terrorism a criminal justice issue or a war. The criminal justice approach leaves America more vulnerable, and I think it is destined to lose the argument because even if you temporarily win the debate, when terrorism inevitably strikes at some future date, the pendulum [sp?] will swing back and your view will be considered naive and dangerous.

What "no longer a threat" looks like is old and feeble, or young and rehabilitated or at least without any reasonable path available to kill Americans.

Anonymous said...

Prisoner of war are released when the war is over, not sooner, because it would be their duty to return to their armed force and go back to fighting us as soon as they were let go.

When the allies captured hundred of thousands of German soldiers in Tunisia, we held them until well after V-E Day. If we had let then go sooner, we just would have fought them all over again, say in Normandy.

Think about those Germans. Assume that they hadn't personally murdered any Jews or anything like that. What would we have prosecuted them for, carrying a Luger without a license? Driving an uninsured Panzer? No. They had nothing wrong; they were only so unfortunate as to have been captured in a war, sort of like John McCain. Holding them until the end of the war was certainly not "Roosevelt considering unconstitutioal imposition of preventive detention."

Really, all this ambulance-chaser mumbo-jumbo is trying to sound pious and intellectual at the same time but it is nothing but puerile posturing. The law of war is very clear on these matters. Look it up, children. See what it says about when and how P.O.W.'s are released.

Lou Gots

Darren Lenard Hutchinson said...

Sorry - but the original test, if utilized, would not have created an egalitarian distribution of promotions. I did not argue that the ultimate test should treat people differently, but that the City is permitted to construct promotions standards that create egalitarian results. Title VII has always allowed this. Also, yanking the test means that no one was promoted -- which is, in fact, egalitarian. Your argument suffers because you only define equality in terms of "intent" rather than "impact."

I also believe that we should (and are required) to extend due process to detainees. The Court has already made this determination.

The Supreme Court and international law do not permit countries to hold people until they are "old and feeble," etc., simply because the government suspects the person is dangerous. The government bears the burden of proof, and a mere "good faith" test for up to lifetime detention is a great injustice. "Good faith" is the standard that lawyers must meet when they merely file civil litigation. The "truth" comes after discovery and a trial. You would cut off discovery and a trial and allow mere good faith to justify indefinite imprisonment. While we're at it, perhaps we can intern Japanese Americans again too, just for fun.

Darren Lenard Hutchinson said...

Anonymous: Before you come in heaving insults, try reading the commentary. I have said in this thread that the detention of war captives is accepted. But some of the detainees at GITMO were not a part of any "war." Also, Obama's description of "dangerous" people does not necessarily include war captives. If he were just talking about people plucked from the battlefield, this would be an easy issue. But he is not.

Darren Lenard Hutchinson said...

Anonymous: It appears that you decided to insult and belittle before reading the commentary. I have said in this thread that the detention of war captives is accepted. But some of the detainees at GITMO were not a part of any "war." Also, Obama's description of "dangerous" people does not necessarily include war captives. If he were just talking about people plucked from the battlefield, this would be an easy issue. But he is not.

Roy Lofquist said...


As I understand the issue of international law the US is bound only in so far as it is incorporated via the treaty provisions of The Constitution. The US specifically rejected Geneva IV.


Kansas City said...


Your true extreme liberal colors, and apparent lack of any real world experience, are coming through with your pitch for "egalitarian distribution" of promotions. Let's forget merit. Let's just divide the promotions up so that every color gets their share. I don't think even communism selected their leaders that way.

Darren Lenard Hutchinson said...

KC -- I take it as a compliment that you believe I'm an "extreme liberal." The rest of your argument is burning straw.

junyo said...

"But holding people in prison because the president says the person might commit violence (or even simply hates the US) is a frightening concept."

Actually it's only a problem if you're a stateless actor. Citizens have the court system to ensure due process. Foreign citizens have their respective governments, I'd be perfectly content to send people back to their country of origin and let those justice systems deal with them, provided we could then hold that state responsible should those people commit any future actions against the US.

However, for essentially stateless actors - and keep in mind that a lot of these people cannot be repatriated because their own government nor any other wants them - then that's the risk you take and the cost you pay for the advantage of not being a member of a recognized military.

The US government has no obligation to act against it's own interests and endanger American citizens simply to offer due process to people it has a reasonable certainty represent a threat.

Kansas City said...


You have a nice site, post some interesting stuff and generate some good debate.

However, whenever you are called on something -- such as "egalitarian distribution" of promotions -- you tend to run rather than engage. In this case, you dismiss my point that egalitarian distibution ignores merit, i.e., don't you want the most qualified leader directing the firefighters when they arrive to save your home and family? It may be that your non-merit egalitarian approach is indefensible or an untentional misstatement by you. If so, then you should concede or clarify, not run from the debate through citing imaginary strawmen.

Keith said...

Does this not show that a written Constitution is worthless in itself ? Rule by Decree is not in accord with a law based state and nor is Indefinite Arbitary deprevation of Personal Liberty. If you read the US Constitution it quite clearly vests " all Legislative .. powers in a Congress of the United States" and provides " the writ of Habeas Corpus may not be Suspended unless when during time of invasion or Rebellion the Public safety may require it." What a joke and Scandal that Americans have accepted a police state doctrine the Supreme Law directly forbids. No one has explained why the USA ignores Treaty obligations when they are "the Supreme Law of the Land" ?

Watching and listening to Americans try to worm their way around their own Law is amazing and shameful

Darren Lenard Hutchinson said...

More straw from Kansas.

I have made the case many times on how Title VII allows for plaintiffs to argue that there are less discriminatory ways of achieving the same result (merit). Of course, you conveniently forget Title VII and those arguments because they do not fit your "horror" script. While you pretend that "merit" only has one shape, many people disagree. We already had this debate. Your claim that I am "running" from this issue or any other issue is completely without MERIT.

Darren Lenard Hutchinson said...

Junyo: Your argument is wrong. The US government is bound by certain legal principles whether or not a citizen is involved. These norms come from federal statutes, treaties, and the constitution.

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