White House Weighs Order on Detention Officials: Move Would Reassert Power To Hold Terror Suspects Indefinitely
By Dafna Linzer and Peter Finn
ProPublica and Washington Post Staff Writer
Saturday, June 27, 2009
Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for 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.
Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.
After months of internal debate over how to close the military facility in Cuba, White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible. Several officials said there is concern in the White House that the administration may not be able to close the prison by the president's January deadline.
White House spokesman Ben LaBolt said that there is no executive order and that the administration has not decided whether to issue one. But one administration official suggested that the White House is already trying to build support for an order.
We want to build support for the order we haven't decided to issue.
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 said the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release. Two officials involved in a Justice Department review of possible prosecutions said the administration is strongly considering criminal charges in federal court for Khalid Sheik Mohammed and three other detainees accused of involvement in the Sept. 11, 2001, attacks.
What sentence could we give KSM that would be worse than being waterboarded 183 times in a month?
A glimmer of hope:
The other half of the cases, the officials said, present the greatest difficulty because these detainees cannot be prosecuted in federal court or military commissions. In many cases the evidence against them is classified, has been provided by foreign intelligence services or has been tainted by the Bush administration's use of harsh interrogation techniques.
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. One official said the administration is hoping that as many as 70 Yemeni citizens will be moved, in stages, into a rehabilitation program in Saudi Arabia.
But then:
Three months into the Justice Department's reviews, several officials involved said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees cannot be charged or released.
Silly me, I thought inability to charge someone meant you had to release them. What's that called again?
Toward the end, the logic dances really go haywire:
Instituting long-term detention through an executive order would leave Obama vulnerable to charges that he is willing to forsake the legislative branch of government, as his predecessor often did. Bush's detention policies suffered defeats in the courts in part because they lacked congressional approval and tried to exclude judicial oversight.
"There is no statute prohibiting the president from doing this through executive order, and so far courts have not ruled in ways that would bar him from doing so," said Matthew Waxman, who worked on detainee issues at the Defense Department during Bush's first term. But Waxman, who waged a battle inside the Bush administration for more congressional cooperation, said that the "courts are more likely to defer to the president and legislative branch when they speak with one voice on these issues."
One voice. Hence the effort to build support for the executive order that the president might issue.
Tawfiq bin Attash, who is accused of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.
Little information on bin Attash's case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.
The Cole. I like how the administration official slipped that in. Remember the Cole!
Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.
"These issues haven't morphed simply because the administration changed," said Juan Zarate, who served as Bush's deputy national security adviser for counterterrorism and is now at the Center for Strategic and International Studies in Washington.
No, the issues haven't morphed, but the administration has.
Right?
Here are my fears: Obama has caved to GOP nonsense about "Where will you put them?" as if the thousands of killers in American prisons are less dangerous than these guys.
Second, everyone has lost faith in the American justice system. That is point two in truth, justice, and the American way. I guess the bright side is we lost faith in truth first?
Restoring rule of law is what we voted for; restoring America's image; restoring America.
I have mixed feelings about Joan Vennochi's column today. On one hand, she said what everyone is thinking.
On the other hand, everyone thinking it does not automatically justify saying it. It's not fair to compare anyone to Barack Obama, even someone as theoretically close to him as Deval Patrick.
Promising a different kind of politics as a candidate and delivering on it as a public official is a delicate task. The now-worn narrative about Patrick's early missteps includes his choice of state vehicle - a Cadillac - and the expensive new drapes he ordered for his office. He ran as an outsider, then quickly started losing the inside ballgame to legislative leaders. He alienated his liberal base by pushing for casinos. He alienated the general public by backing a state senator for a $175,000-a-year job without explaining why and then leaving her to twist in the wild political winds that followed.
Communication is Obama's great strength and Patrick's great weakness. The Massachusetts governor is effective one-on-one. But, unlike Obama, he has trouble driving a cohesive political message and doesn't seem to enjoy the mission.
This tidbit is devastating:
From the day he won election, Patrick did the opposite. In one of his first public addresses following the election, Patrick told a gathering of New England newspaper editors and publishers that they missed the story of his triumph because they didn't understand his campaign. He periodically complains about media cynics; such critiques don't win any media champions.
Missed the story? Was he drunk? You could argue that they missed it before the primary, but the only reasons the Globe didn't declare him the winner immediately after the primary was that they wanted to appear objective.
It's one thing to decide that, and another to annouce it to the press.
A running theme, which I disagree with somewhat, is that Obama enjoys the game and Patrick doesn't. I think the guv looked pretty cheerful when he cornered the Legislature on its ethics bill. Obama campaigned cheerfully, but seems to be getting some Washington culture shock.
For $25,000 to $250,000, The Washington Post has offered lobbyists and association executives off-the-record, nonconfrontational access to "those powerful few": Obama administration officials, members of Congress, and - at first - even the paper's own reporters and editors.
The astonishing offer was detailed in a flier circulated Wednesday to a health care lobbyist, who provided it to a reporter because the lobbyist said he felt it was a conflict for the paper to charge for access to, as the flier says, its "health care reporting and editorial staff."
The offer - which essentially turns a news organization into a facilitator for private lobbyist-official encounters - was a new sign of the lengths to which news organizations will go to find revenue at a time when most newspapers are struggling for survival.
With the newsroom in an uproar after POLITICO reported the solicitation, Executive Editor Marcus Brauchli said in a staffwide e-mail that the newsroom would not participate in the first of the planned events - a dinner scheduled July 21 at the home of Publisher and Chief Executive Officer Katharine Weymouth.
I won't pretend I understand the strategy, but I am sure John McCain, Dick Cheney, and Newt Gingrich will be out front saying they wholeheartedly support it.
When he died, it came as a shock, revealing that in our hearts part of us was still rooting for him, unwilling to believe that he was actually a frail 50-year-old man, that the innocent mastery of the voice that sang "I Want You Back" was still undiminished beneath the painful painted cheekbones. And that's how good he was - after all that, despite everything that is small within us, we still believed.
- John H. Richardson
(Bumped, now with video. I like the Cyndi Lauper version of the song too, but it's less, you know, bloggy. - promoted by Jim Corrigan)
Tomorrow is the end of the second quarter, so in theory your favorite candidate gets some extra benefit from the money they raise, because they can gain an edge in the "money primary."
I'd like to discuss this further, philosophically, but from a tactical perspective, this is undeniably true. Barack Obama generated a lot of passion in his early days, but if he hadn't kept up with Hillary Clinton on the money side, it wouldn't have meant much. Kucinich supporters had passion to spare.
So, if you're thinking about it, today or tomorrow would be good times to do it. But no worries, they will certainly take the check on Wednesday and thereafter.
Term Saw High Court Move to The Right Roberts-Led March Likely to Continue
OK so this isn't exactly shocking, but I'm glad the Post put it on the record.
On the verge of declaring the key provision of the Voting Rights Act unconstitutional, but then stepping back. Looking hard at whether some protections of minorities amount to violations of the Constitution, then leaving the topic for another day. Appearing sympathetic to school officials for their decision to strip-search a 13-year-old student, but shielding them only from any liability for their actions.
Doesn't lack of liability essentially mean it's allowed?
The court's conservatives made it harder for those pressing civil rights claims to get into court, and the same for environmentalists. Conservative justices raised the bar for those alleging age discrimination, a decision that liberal Justice John Paul Stevens called "an unabashed display of judicial lawmaking." They declined to find a constitutional right to DNA testing for prisoners who say the tests could prove their innocence.
I suppose, if one takes a strict constructionist view, that videotaped testimony could be excluded. No mention of that in the Constitution.
It is a familiar ideological split: Roberts, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. on one side; Stevens, Ginsburg, Stephen G. Breyer and Souter on the other. Justice Anthony M. Kennedy remains in the role of the decider, finding himself in the majority more than any other justice and siding twice as often in 5 to 4 votes with conservatives as he did with liberals.
I know Jeffrey Rosen has annoyed some people lately, but his book The Supreme Court: The Personalities and Rivalries that Defined America is quite good, and he and Jeff Toobin, in The Nine, shaped my negative view of Justice Kennedy. You're almost better off with Scalia -- almost. Scalia has been known to shift to make the wind blow to the right.
Yale law professor Jack M. Balkin, who runs a popular liberal blog on the court, wrote that the court's decision to stop short of finding the provision unconstitutional -- as well as its decision to put aside equal-protection questions about Title VII of the Civil Rights Act -- was due to the country's changing political climate.
"If I am correct, what put the conservative Justices (and especially Justice Kennedy) on the defensive was the assumption that they would risk sacrificing the Court's legitimacy in a climate in which neither the President nor the Congress would support their gambit and would in fact do everything possible to undermine their legitimacy," he wrote.
I can remember when I thought the court was nine great legal minds doing their best for our country. I still think that, sometimes, in the same way I irrationally believe baseball players don't do steroids. Then they get tested, and I have to face the truth. It's not pleasant.
Today is the president's first deadline, and he is keeping his word. The New York Times has a good editorial summing things up:
After six bloody, ruinously costly years, there is an end in sight to the American occupation of Iraq. Under an agreement with the Baghdad government, American combat troops are to leave Iraq's cities by Tuesday. President Obama has pledged that by Aug. 31, 2010 - 14 months from now - all combat troops will be out of Iraq and by the end of 2011 all American troops will be gone.
The big theme here is "work remains."
Governing More than anything, Iraq needs competent, inclusive government. To win public loyalties, the government must do a much better job of providing basic services to all Iraqis. With improved security, there has been an encouraging leap in electricity production, although there are still too many interruptions and shortfalls. Clean water is in desperately short supply.
American advisers have been working with Iraqi ministries, but United States officials say they are staggered by the lack of skilled managers and the pervasive corruption. Tackling those problems nationally and regionally must be a top priority. As American troops leave, the Pentagon must continue to provide security so civilian advisers can work throughout the country.
And, inevitably, a dark warning:
Iraq's politicians also need to show a far greater willingness to address and resolve long-deferred political problems. In February, on the same day he outlined his withdrawal plans, Mr. Obama said "a lot of the ultimate outcome" in Iraq would depend on how difficult issues, including the oil law, are resolved. American officials now say that is unlikely to happen any time soon and they will be satisfied if legislators manage to pass a new election law in time for January's national elections.
There are growing concerns that Prime Minister Maliki may be accumulating too much power, undercutting rivals and building a cadre of military and intelligence officers loyal only to him. Washington must make clear that it will not support any power grab and find ways to encourage other political leaders, while dissuading them from making their own power grabs.
The whole editorial is worth reading if you're inclined. We have to be grounded, but after everything -- six years of war, making it the second longest war in our history -- it is still a happy day.
Stern said his organization issued a release chastising Feinstein last week, because she should "put her foot on the gas, not the brake" on health reform.
"The gas pedal to go where?" Feinstein replied, explaining she has questions about how a broad expansion of health coverage will be paid for.
"I do not think this is helpful. It doesn't move me one whit," she said. "They are spending a lot of money on something that is not productive."
"Not productive." A clue, that.
I have mixed feelings about MoveOn. It is good that they exist, but I often think they're overly aggressive.
In this case, however, I think they're spot on. Healthcare is a national emergency.
The Web-based MoveOn.org plans to run ads this week against Sen. Kay Hagan (D-N.C.) over the issue.
"The Democrats were voted into office to fix this problem," said MoveOn political advocacy director Ilyse Hogue. "It is absolutely our job to hold them accountable."
One Democratic strategist who is working full-time on health reform was apoplectic over what he called wasted time, energy and resources by the organizations.
The strategist, who asked for anonymity because he was criticizing colleagues, said: "These are friends of ours. I would much rather see a quiet call placed by [Obama chief of staff] Rahm Emanuel saying this isn't helpful. Instead, we try to decimate them?"
There is an alternative, of course. The strategist could pressure the holdouts to do something.
It sounds mean, and I feel awkward, saying Democrats who stand in the way of this should face consequences. (Then again, is a primary opponent really a consequence? Or democracy in action?)
But if this is what it takes, so be it. A few careers dashed by healthcare? Think how many careers -- and so much else -- have been dashed by lack of healthcare.
