The Obama Administration announced last week that it no longer plans to seek new legislation creating a framework for preventive detention of Guantanamo Bay detainees. The move represents a departure from the plan for such legislation laid out by President Obama in his May 2009 speech at the National Archives. In that speech, the President described a category of detainees at Guantanamo Bay “who cannot be prosecuted yet who pose a clear danger to the American people.” He added:
If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
Yet now the Administration has scrapped the plan to “develop an appropriate legal regime” with Congress. Instead, it plans to hold the approximately 50 Guantanamo detainees who fall into this category pursuant to the Authorization for Use of Military Force (AUMF) passed by Congress shortly after 9/11. The position that the AUMF authorizes the detention of suspected terrorists without charges was one adopted by the Bush Administration and buttressed by Justice O’Connor’s plurality opinion in Hamdi v. Rumsfeld in 2004. In that opinion, Justice O’Connor wrote:
We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the necessary and appropriate force Congress has authorized the President [through the AUMF] to use. 542 U.S. 507, 518 (2004).
Reaction to the Administration’s decision has been mixed. Many civil liberties and human rights advocates are relieved by the decision, fearing that any legislation would institutionalize and legitimize the system of detention. Moreover, these parties fear involving Congress, which has been consistently hawkish on issues concerning Guantanamo Bay and detainee rights. Others, such as Benjamin Wittes of the Brookings Institution, are troubled by the Administration’s decision. Wittes, who titled his Washington Post op-ed on the decision as “Obama’s Dick Cheney Moment,” writes that legislation is needed to replace the current system in which rules defining detention are unclear, ever-shifting and ultimately decided ad hoc by the judiciary (i.e. Justice Anthony Kennedy).
While the merits of the decision to forego legislation are to be debated, it is interesting to wonder why the Administration has suddenly shifted strategy. One possibility is that the Administration observed the hard-line stance that Congress was taking on the transfer of prisoners from Guantanamo and decided it wanted to limit Congress’ influence on any issue concerning Guantanamo detainees. In addition, the Administration may have decided that at a time when it continues to receive criticism for the probe into potential prisoner abuse by CIA agents, it does not want to have to stake out another high profile position in favor of detainee rights. An entirely distinct possibility is that the Administration has come to value the flexibility and discretion afforded by the nebulous standards of the current system. After all, the current system vests decision-making power within the executive branch, and it is the rare occurrence when that branch chooses to cede such power.