07/28/2009 05:12 am ET Updated May 25, 2011

A Hobbesian Choice for Obama?

On the issue of what to do with Guantanamo detainees, Barack Obama is between the proverbial rock and a hard place.

As he struggles with the political backlash from a Congress determined to keep Guantanamo terrorism suspects out of the U.S., his administration is reportedly preparing an executive order that would give him authority to hold prisoners indefinitely without trial, according to weekend media reports.

News of the order was reported by The Washington Post and ProPublica, an independent investigative newsroom, and published Saturday by The Post and later by The New York Times. It would involve some 90 Guantanamo detainees who are regarded as "too dangerous to release" but who cannot be tried in U.S. criminal courts because evidence against them was gathered by cooperating foreign intelligence services or because it is tainted by the suspects being subjected to harsh interrogation techniques.

The dilemma of what to do with these suspects is threatening to scuttle Obama's pledge to close the Guantanamo Bay (GITMO) prison camp by January 2010.

In one of the few truly bipartisan actions recently taken by Congress, lawmakers of both parties and in both the House of Representatives and the Senate -- their eyes fixed firmly on the 2010 elections -- have expressed overwhelming opposition to bringing GITMO detainees to the U.S., even to stand trial. Amid charges of fear-mongering, they voted earlier this month to deny the administration the money it requested to fund the closure of the iconic prison.

But part of Obama's dilemma is that an "indefinite detention" regime would channel the position taken by his predecessor, President George W. Bush, and would also threaten to alienate the left-wing of Obama's Democratic Party, including the human and civil rights communities, which hailed the new president's decisions to outlaw torture and shutter Guantanamo.

Civil libertarians and many legal scholars were quick to condemn the idea of indefinite detention. Here's what some of them told us:

Jonathan Hafetz, a staff attorney with the American Civil Liberties Union, (ACLU), said, "It would be highly disappointing if President Obama accepted the false proposition that a system of indefinite detention is either necessary or legal. It is neither. The suggestion that the President himself has the prerogative to declare individual enemies and suspend the core protections of the Bill of Rights smacks of the same assertion of sweeping executive power that characterized the last administration and that is antitethical to our basic framework of government."

ACLU National Security Project director Jameel Jaffer said, "To allow the government to imprison terrorism suspects indefinitely without charge or trial would fundamentally alter the character of American democracy. And a preventive detention system would be a human rights disaster whether based on a statute enacted by Congress or an executive order issued by the president."

Michael Ratner, president of the Center For Constitutional Rights, a legal advocacy organization that has mobilized dozens of lawyers to represent GITMO detainees, said, "Prolonged imprisonment without trial is exactly the Guantanamo system that the president promised to shut down. Whatever form it takes -- from Congress or the president's pen -- it is anathema to the basic principles of American law and the courts will find it unconstitutional."

Some Constitutional scholars were equally outspoken. Professor Francis A. Boyle of the University of Illinois law school said, "The International Covenant on Civil and Political Rights, to which the United States is a party, clearly requires that alleged terrorists be given a trial."

He added, "Unlike President Bush, President Obama is a lawyer and used to teach Constitutional Law. He must know better. The fact that President Obama and his administration are once again continuing the illegal and totalitarian Bush administration policies does not augur well for the future of our Republic, its Constitution and Bill of Rights, as well as America's commitment to the Rule of Law."

But opposition to the indefinite detention idea was not limited to the Left. Bruce Fein, a well-known Conservative who served in the Department of Justice during the Reagan presidency, said, "Indefinite detention without accusation or trial is a terrible idea. If the United States government is unable to assemble evidence of guilt (including conspiracy to provide material assistance, which criminalizes even unalarming plots in their embryonic stages) with all its staggering resources devoted to counterterrorism, including huge bounties for informants, then the suspect is probably innocent."

Ramzi Kassem of Yale law school said, "After years of hearing it from the Bush Administration, it is now plain that the phrase 'individuals who cannot be tried but are too dangerous to release' is code for situations where our government broke the law and tortured people and now cannot go to court with what it obtained through torture."

"This is a false dilemma. For centuries our system has stood for the principle that torture evidence is inadmissible as a moral matter and because it is unreliable. Our government thinks certain individuals are dangerous because of what it learned by torturing them or others. That information is as worthless in this context as it would be in any other. If all we have on someone is torture evidence, then that person should be let go. That is what the rule of law has always meant in this country."

Chip Pitts, head of the Bill of Rights Defense Committee, said, "In its relentless search for "pragmatic solutions" and "compromises", the Obama administration seems to continually neglect the larger, systemic costs of perpetuating the legally flawed, constitutionally imbalanced, and ineffective Bush approaches. Such an executive order would not only taint any legitimate prosecutions of terrorists in U.S. courts (by establishing this "shadow" system where difficult-to-prosecute suspects could be held by executive fiat), but would also jeopardize prospects for restoring U.S. leadership and success on national security as well as other foreign policy goals. At a time when the U.S. is rightly criticizing Iran for using precisely such techniques, it is ironic in the extreme that the administration is considering institutionalizing such regressive approaches here at home. The ability of the global system to respond to terrorism, economic crises, and other challenges not yet perceived vitally depends on maintaining open societies premised on universal and fundamental human rights -- an insight the United States forgets at its peril."

He continued: "The Obama Administration now seems to be proposing that, instead of our tested system, we should improvise a new mechanism that will allow us to use torture evidence, a system that will allow us to get away with breaking the law, a system that delivers convictions but not justice. This new system would inevitably dilute our commitment to the rule of law, both perceived and real."

"It will also mean that the United States will have formalized a double standard in its administration of justice. One set of individuals will get the full panoply of legal protections afforded by our Constitution while another group -- mostly or exclusively composed of Muslims -- will get justice light and indefinite detention unreviewable by a real court."

And Prof. Brian J. Foley of the Boston University School of Law said, "Indefinite detention based on evidence that cannot be presented in a U.S. court is likely indefinite detention based on unreliable evidence (confessions extracted by torture, hearsay and other un-cross-examined testimony and hunches that may be infected with bias or mistake). Locking up the wrong people will not help us prevent terrorism and indeed might mislead us into believing we have diminished the threat."

But other observers were more cautious. Prof. David M. Glazier of the Loyola Law School in Los Angeles said, "It is hard to judge the legality of the Obama Administration proposal because of the vagueness in the reporting. The real legal flaw with Guantanamo is not the concept of indefinite detention, but rather the failure to conform it to the law of war. Confinement in prison cells, coercive interrogation, and even routine shackling of prisoners all violate the law of war."

According to The Washington Post, "Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order." Such an order could be rescinded and would not block later efforts to write legislation.

But CCR's Ratner disagrees. He said, " If the last eight years have taught us anything, it's that executive overreach, left to continue unchecked for many years, has a tendency to harden into precedent."

Nor is this option is not without political risk for Obama; it could anger lawmakers who could see it as an "end-run" around Congressional authority.

Among the few lawmakers publicly opposed to indefinite detention is Wisconsin Democratic Senator Russ Feingold. In a letter to President Obama, he wrote that indefinite detention poses a risk "establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security."

In a May speech at the National Archives, Obama said he was considering indefinite detention for some prisoners. He 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.

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.

On the day Obama took office, 242 men were imprisoned at Guantanamo. 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 told The Washington Post that the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release.

The other half of the cases, the officials said, present the greatest difficulty. 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.

In strictly political terms, Obama is presented with a Hobbesian choice: The Left of his party is already disillusioned by some of the actions the president has taken: invoking the State Secrets Doctrine, arguing that prisoners at Bagram Air Base in Afghanistan have no rights, refusing to comply with court orders concerning the release of the torture photos, delaying the declassification of the CIA Inspector General's 2004 report, distancing himself from any independent inquiry into the misdeeds of his predecessors, and so forth.

If he opts for "indefinite detention" or, as the Administration likes to put it, "preventive detention," a large slice of his base constituency will go ballistic. So, if he were a cynic, his political calculus might be: "Where can they go?" John McCain?

But if he decides to travel the path of human rights advocates and most of his fellow Constitutional lawyers, he will face the wrath of a Congress -- in both parties and in both Houses -- whose governing principle is reelection and whose time horizon extends no further than 2010 mid-terms. And these are the people he needs to transform the "change we can believe in" into law. But not in their backyards!

Not an easy choice. In order to govern, a president has to win. Is this tug-of-war winnable? How? You tell me -- I'd love to hear from you, gentle readers.

Meanwhile, maybe we should all be happy we're not the president.