What’s happening now is the Senate approved (67-29) Senator Feinstein’s amendment to the National Defense Authorization Act, which does not authorize military detention of citizens or lawful permanent residents captured during acts of terrorism, though it can authorize force, within the US unless but detention can be determined as an Act of Congress “if it expressly authorizes such detention.” And there is the rub. The “express authorization” can be interpreted as grounds for Congress to “expressly authorize” detention.
The Feinstein amendment provides that no authorization for the use of military force may be construed to authorize the detention of U.S. citizens or lawful resident aliens who are captured inside the United States, unless–and this is a big “unless”–an act of Congress expressly authorizes such detention.
As I read the amendment, it says the military detention of U.S. citizens may be authorized in accordance with the law of war as long as this action is expressly authorized by Congress. Further, the amendment’s requirement for express authorization applies only to the detention of U.S. citizens who are captured inside the United States. So no such authorization would be required for the detention of a U.S. citizen in the course of military operations overseas. I believe it is appropriate that Congress focus on the issue of military detention at the time they authorize the use of military force, as would be required by the Feinstein amendment.
President Obama, meanwhile, has threatened to veto any provisions that restricts his transfer powers of Guantanamo detainees into the US or other countries. That is an understandable reaction on the part of the President as Commander in Chief. However, the president and members of his national security council still believe that Gitmo should be closed. This latest debate has resurrected Obama’s early Gitmo policy. The president has never come out and said that he is against detention without trial, however.
there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. …
Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, 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. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. …
I know that creating such a system poses unique challenges. 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.
So does that mean the President will work with some members of congress to implement a policy and mechanism for detainment of prisoners without conviction? So we’ll close Gitmo but continue its operations in another location? If Gitmo is a stain on America, which provides propaganda for terrorists, what is the alternative plan? Is the president advocating Gitmo under another name? If so, what exactly will that accomplish aside from closing Gitmo.
Instead of stammering over closing Gitmo, the direction should be focused on how do we close Gitmo? And if we do, what are the alternatives? Until those questions are answered, Gitmo is a dead issue. Unless of course, we simply buy all the detainees plane tickets back to their point of origin and simply close up shop on the whole operation. That, too, is an impossibility according to the president.
President Obama probably wishes he could take back this campaign pledge. If the thought was noble, it wasn’t very well thought out. It was never easy as closing Gitmo.