Remember when the Left scoffed at the argument from George W. Bush that claimed the authorization to use military force allowed the executive branch to hold captured terrorists indefinitely, without criminal trial? Bush’s opponents screamed about human rights and due process, and claimed that Bush had abused his power. Those critics included Barack Obama, who regularly castigated the Bush administration for its failure to provide his idea of due process to detainees at Guantanamo Bay and elsewhere, as well as blasting Bush for his argument that he didn’t require Congress to act to maintain that power.
The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday.
Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.
In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.
But President Obama’s advisers are not embracing the more disputed Bush contention that the president has inherent power under the Constitution to detain terrorism suspects indefinitely regardless of Congress.
The Justice Department said in a statement Wednesday night that “the administration would rely on authority already provided by Congress” under the use of force resolution. “The administration is not currently seeking additional authorization,” the statement said.
This is known as a distinction without a difference. If the White House doesn’t see the need to get Congressional authorization for continued indefinite detention, then it means that the White House believes it has that power under the Constitution, whence it derives all authority. They may not want to say it out loud, but their actions speak volumes. Obama has adopted the Bush position in its entirety.
And this is, of course, another example of the Geraghty Axiom. The New York Times has trouble reconciling this with Obama’s statement in May on the subject:
Still, the position surprised some critics who had expected after a speech by Mr. Obama in May that he would seek legislation to put the system of indefinite detention on firmer political and legal ground. In that speech at the National Archives, Mr. Obama said that he was considering continuing indefinite detention in some limited cases but that he would not act unilaterally.
“We must recognize that these detention policies cannot be unbounded,” he said at the time. “They can’t be based simply on what I or the executive branch decide alone.”
The explanation? All of Obama’s statements come with an expiration date — all of them. Ask the Poles, who heard Obama offer rhetorical support at about the same time for a land-based missile shield, a controversial issue for which Polish politicians had risked much, only to have Obama flip-flop on the 70th anniversary of the Soviet invasion.
Will Obama acknowledge that Bush had it right all along, and that war powers give the executive branch the right to hold unlawful combatants indefinitely until the end of hostilities? Or will he attempt, as the New York Times reports, to make distinctions without differences?
Update: Jazz Shaw is spitting nails over this reversal. He and I disagree on the policy point, but we both agree that Obama is a hypocrite.