Obama Keeps Bush Rules On Indefinite Detention
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President Obama had promised to shut down the detention center at Guantanamo Bay by next January, but White House officials now say that deadline might not be realistic. And this week, the administration announced it will not push for new rules to hold detainees indefinitely. Instead, those people will be held under a Bush-era law that Congress passed just days after 9/11.
NPR's Ari Shapiro reports on how that strategy is playing out here in Washington.
ARI SHAPIRO: Back in May, President Obama said in a speech, there's a group of detainees who may have to remain behind bars without trial for a very long time.
President OBAMA: And so, going forward, my administration will work with Congress to develop an appropriate legal regime, that our efforts are consistent with our values and our Constitution.
SHAPIRO: But within a month, Senate staffers say, the Obama administration was privately telling Congress a new law probably would not be necessary. This week, Justice Department spokesman Dean Boyd put it on the record, quote, "Congress has already provided authorization through the 2001 Authorization for the Use of Military Force." That law lets the president detain people connected to al-Qaida or the Taliban. It is one paragraph long and it's known as the AUMF.
Mr. BENJAMIN WITTES (Senior Fellow, Brookings Institution): The AUMF is old, it's short, and it's nonspecific.
SHAPIRO: Benjamin Wittes of the Brookings Institution has argued for creating a new set of detailed rules that would put certain limitations on how the president can hold people without trial. He is disappointed that the Obama administration has chosen to rely on the AUMF instead.
Mr. WITTES: It's precisely the policy that civil liberties and human rights groups have been denouncing for years, and I think the prior administration is probably entitled to say, why is it okay when the new guys do this when it was so horrendous when we did it?
SHAPIRO: Indeed, human rights groups considered this a win. Devon Chaffee is with Human Rights First.
Ms. DEVON CHAFEE (Advocacy Counsel, Human Rights First): The fact that they are - that they're not seeking legislation to establish any new scheme of detention, I think, is a positive development.
SHAPIRO: She still hopes the Obama administration will decide to put all the Guantanamo detainees on trial.
Christopher Anders is with the ACLU, which has litigated many of these issues. He's happy the president won't try to get a new authority. He's still fighting the old law.
Mr. CHRISTOPHER ANDERS (Senior Legislative Counsel, American Civil Liberties Union): We oppose this use of the AUMF, and we've been challenging that and working with others who are challenging that in court.
SHAPIRO: So if Congress doesn't set new rules for how the president can hold people indefinitely, the courts may. One court in particular: the Supreme Court.
Benjamin Wittes notes that the justices have divided five to four on every major detention case since 9/11.
Mr. WITTES: And so you have this enormous concentration of detention policymaking power in the hands of a single swing justice. And so to rely on the AUMF is really to delegate ultimately the entire scope of American detention authority to Anthony Kennedy.
SHAPIRO: He's the swing justice. So why would the administration go this route?
Commander GLEN SULMASY (Professor, Coast Guard Academy): It seems that the judiciary is more involved perhaps because of Congress' inability to produce adequate solutions.
SHAPIRO: Commander Glen Sulmasy teaches law at the Coast Guard Academy and he's written a book on preventive detention. He says you could interpret the administration's move as a reflection on how inefficient Congress is.
Commander SULMASY: Part of this can be just reality, that to sit with Congress and create new legislation now at this point in time might have been a task that might have taken much longer than originally anticipated. And if you look at it from a timeframe, there's four months until the scheduled closure of the detention facility occurs, and there may not be time right now.
SHAPIRO: Members of Congress generally seem happy with the president's decision. They're busy with health care and other major issues. Preventive detention is controversial. It does not divide neatly along party lines, so staffers say they're happy to leave this one in the hands of the administration, at least for now.
Ari Shapiro, NPR News, Washington.
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