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White House Drafts Executive Order to Allow Indefinite Detention of Terror Suspects

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Friday, June 26, 2009
By Dafna Linzer and Peter Finn
ProPublica and Washington Post Staff Writer

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

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 bypassing 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 U.S. military prison
at Guantánamo Bay, Cuba, White House officials are growing increasingly worried
that reaching quick agreement with Congress on a new detention system may prove
impossible. Several officials said there is concern in the White House that
the administration may not be able to close the facility by the president’s
January deadline.

White House spokesman Ben LaBolt did not directly respond to questions about
an executive order but said the administration would address the cases of Guantánamo
detainees in a manner “consistent with the national security interests
of the United States and the interests of justice.”

One administration official suggested the White House was already trying to
build support for an executive order.

“Civil liberties groups have encouraged the administration, that if a
prolonged detention system were to be sought, to do it through executive order,”
the official said. Such an order could be rescinded and would not block later
efforts to write legislation, but civil liberties groups generally oppose long-term
detention, arguing that detainees should either be prosecuted or released.

The Justice Department has declined to comment on the prospects for a long-term
detention system while internal reviews of Guantánamo detainees are underway.
The reviews are expected to be completed by July 21.
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In a May speech, President Obama broached the need for a system of long-term
detention and suggested that it would include congressional and judicial oversight.
“We must recognize that these detention policies cannot be unbounded. They
can’t be based simply on what I or the executive branch decide alone,”
the president said.

Some of Obama’s top legal advisers, along with a handful of influential Republican
and Democratic lawmakers, have pushed for the creation of a “national security
court” to supervise the incarceration of detainees deemed too dangerous
to release but who cannot be charged or tried.

But the three senior government officials said the White House has turned away
from that option, at least for now, because legislation establishing a special
court would be both difficult to pass and likely to fracture Obama’s own party.
These officials, as well as others interviewed for this article, spoke on the
condition of anonymity because they were not authorized to speak publicly about
internal deliberations.

On the day Obama took office, 242 men were imprisoned at Guantánamo. In his
May speech, the president outlined five strategies the administration would
use to deal with them: criminal trials, revamped military tribunals, transfers
to other countries, releases and continued detention.

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.

Read the full story at Washingtonpost.com: http://www.washingtonpost.com/wp-dyn/content/article/2009/06/26/AR2009062603361.html