Report: Obama considering indefinite detention of terrorists without trial

This makes two posts in a row where old news, for whatever reason, has suddenly become new news. Remember when the New York Times reported on this, er, last May? Remember when, later that same day, The One got freaked out by all the heat he was taking from Dick Cheney and decided to give a speech at the National Archives in front of the Constitution — which included this little nugget near the end?

We’re going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, 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. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into 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.

He promised to work with Congress to develop an “appropriate legal regime”; then, the next month, he started drafting an executive order that would let him hold detainees indefinitely. Now, it seems, we’re back to the congressional approach:

The White House is considering endorsing a law that would allow the indefinite detention of some alleged terrorists without trial as part of efforts to break a logjam with Congress over President Barack Obama’s plans to close the Guantanamo Bay prison, Sen. Lindsey Graham (R-S.C.) said Monday…

Civil liberties advocates and many who back Obama’s effort to close Guantanamo have opposed a preventive detention law as a departure from the tradition of prosecuting and punishing individuals for specific crimes. Some critics have also expressed worries that such a law would be hard to limit and could be extended well beyond Al Qaeda operatives.

Asked why the administration had become more open to a detention statute, Graham cited recent court rulings and comments by several federal judges who said the legal standards for detaining enemy prisoners are too vague…

“I’m sure that that’s what Sen. Graham thinks [but] I don’t have any reason to think the administration has changed its view on this. The president was quite clear he does not want to legislate a system of preventative detention,” said Elisa Massimino of Human Rights First. “In both private conversations and in public, the attorney general and other people in the administration said they’re committed to driving the people detained without charge to zero. I think that would be inconsistent with a pledge to do that.”

Yes, well, according to the NYT, these days the attorney general is increasingly consulting with the White House’s political team. Don’t be surprised to find tomorrow that the idea of releasing hardboiled jihadis into Afghanistan because there’s not enough evidence to prosecute them is quite a bit more nuanced for Eric Holder than it used to be. Exit question via David Frum: Why does Dick Cheney continue to attack Obama instead of pointing out that, in some respects on terrorism, The One is actually out-Bushing Bush? No wonder the White House wants to tangle with Cheney. The more they squabble with him, the easier it is to convince their base that they’re actually high-minded civil libertarians who would never do anything as nefarious and neocon-ish as, er, detaining people indefinitely without trial.

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