Is Obama Edging Towards Bush-Like Indefinite Detention?

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A collaborative reporting team of the Washington Post and Pro-Publica is reporting this afternoon that the Obama Administration is getting closer to issuing an Executive Order that would “would reassert presidential authority to incarcerate suspected terrorists indefinitely.”

There seems to be some confusion, however, about just how far along in the process the White House is. On the Washington Post website right now, the story leads this way:

The Obama administration, fearing a battle with Congress that could stall plans to close Guantanamo, has drafted 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.

On the Pro-Publica site right now, the same story by the same two reporters leads this way:

The Obama administration, fearing a battle with Congress that could stall plans to close Guantanamo, has considered an executive order that would reassert presidential authority to incarcerate suspected terrorists indefinitely, according to three senior government officials with knowledge of White House deliberations.

I have bolded the difference in language, and it is a big one. A White House official tells me that there is no “draft executive order” and that the task force charged with investigating this issue has not completed its work. (A report to the president is due next month.) Not sure what is going on. But the return to the executive powers of indefinite detention, depending on how it is done, could become yet another sore spot for civil libertarians who have been disappointed by the Obama administration’s decisions on issues as varied as state secrets, the refusal to release images of detainee abuse, and the detention of prisoners at Bagram Air Base in Afghanistan.

It’s possible that an early version of the Post-Pro-Publica language was written inexactly, suggesting a direction that has not yet been set in stone. The article(s) also suggest(s) that the executive order may only be a temporary step, as the White House works with Congress to come up with a solution to the problem of detainees who have yet to be subjected to any regular judicial process. “Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order,” explains one administration official, who is quoted in the story(ies).

UPDATE: I just refreshed the Washington Post version of the story, at about 7:06 p.m., and it has been changed to read: “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.”

UPDATE II: The Pro-Publica version, at 7:12,  now matches the Post’s “is drafting” language, though the URL still says “white-house-drafts.” Follow the bouncing ball, I guess, and be happy that the printing presses have not yet rolled out the copy.

UPDATE III: On Saturday morning, the lead of the Post story has yet another formulation: “officials . . . are crafting language.” It seems clear that something is in the works, though it is not as far along as previously feared. Meanwhile, Spencer Ackerman at the Washington Independent points out that the devil for civil liberties advocates may be in the details, despite the fact that several groups have already issued blanket rejections of the executive order idea. Meanwhile, a staffer in Senate Minority Leader Mitch McConnell’s office emails over a statement, asserting McConnell’s demands that Congress not be sidelined in this process, which according to the Post-Pro-Publica story is the whole idea behind the executive order. The McConnell statement after the jump.

Even with an executive order, they [the Obama Administration] still need the funding to be released before they can incarcerate any detainees in the United States. None of the appropriations bills for fiscal year 2010 that are working their way through committee fund the closure as requested by the President. And I expect that the DoD approps bill will present a debate over continuing to bar detainees from being incarcerated in the U.S. As Sen. McConnell said recently, “The defense budget request for fiscal year 2010 includes a similar funding request, so the Senate will consider this matter again in the near future.” And: “An overwhelming bipartisan majority of the Congress disagreed with the administration’s request for $80 million from Congress for the purpose of closing the detention facility at Guantanamo Bay before the administration even has a place to put the detainees who are housed there, any plan for military commissions, or any articulated plan for indefinite detention.

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