07/27/2009 05:12 am ET Updated May 25, 2011

Obama Courts Disaster With New Detention Plan

The Obama administration is rushing towards a unilateral plan to imprison people without trial, according to a huge, new joint article from the Washington Post and ProPublica. The proposal would completely cut Congress out of the process by using an executive order to essentially bring Gitmo stateside:

The Obama administration, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, is drafting 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 bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.

That is a terrible idea. For its part, the White House dispatched aides to push back. From the article:

White House spokesman Ben LaBolt said 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 was already trying to build support.

After publication, another Obama official issued an odd denial to The Atlantic's Marc Ambinder:

An administration official, speaking on the condition of anonymity, flatly denied the report to me. "There is no executive order. There just isn't one." (emphasis added)

First, there is no legitimate reason for a government official to claim anonymity here. It simply echoes the official line from the article, which is likely to be Robert Gibbs' line when reporters press the issue in Monday's briefing.

Second, the response is a classic dodge -- there is no executive order now, and no decision has been made. Of course, the article is not reporting that an order has already been issued. The news is that Obama officials are preparing to advance President Bush's Gitmo detention regime through a unilateral executive order soon, cutting out Congress, and thus any democratic accountability, while extending a controversial, unpopular policy.

Even though Obama's National Archives speech asserted the importance of working with other branches of government. ("We must recognize that these detention policies cannot be unbounded," he said, "They can't be based simply on what I or the executive branch decide alone.")

Even though the Bush administration already tried this unilateral tack, only to have its system invalidated by the Supreme Court precisely because Congress was shut out. (Hamdan v. Rumsfeld.)

And even though decades of legal precedent show, as Professor/President Obama knows, that the executive branch operates at the nadir of its constitutional power when acting without the cooperation of Congress, even in the national security arena. (A point most famously established for President Truman in the Youngstown case.)

Obama's argument for preventive detention "violates basic American values and is likely unconstitutional," warned Sen. Russ Feingold in a recent letter to the President, cautioning that detention without trial "is a hallmark of abusive systems that we have historically criticized around the world." Advancing such a controversial precedent on American soil, without the participation of Congress or the American people, would be disastrous.


Ari Melber writes for The Nation, where this post first appeared.