Without asking Congress for any added power, President Obama on Monday claimed authority for the military to hold as prisoners any terrorism suspect whose detention is deemed “necessary to protect against a significant threat to the security of the United States,” even without pursuing criminal charges.  That will include detention at Guantanamo Bay, and at any other “detention facility” the government sets up. The detention power, however, may be checked by the civilian courts as they decide habeas challenges to continued detention by those at Guantanamo Bay, the President conceded.

The White House outlined the new approach in a statement by the President, a presidential executive order, and a fact sheet on Guantanamo and detainee policy.  Attorney General Eric Holder, Jr., also issued a statement.  These developments occurred as the Supreme Court is on the verge of considering a series of pending appeals in which Guantanamo detainees are challenging the government’s existing policy on holding them indefinitely.

The President relied upon his constitutional powers as Chief Executive, and on the 9/11 Resolution that Congress passed after the 2001 terrorist attacks.  While asserting that the new approach “does not create any additional or separate source of detention authority,” the steps he announced for review of those the government insists on holding amount to an ongoing, indefinite detention policy without necessarily bringing criminal charges against any individual, either in civil court or before a military commission.   The President ordered the Pentagon to resume prosecutions in military commissions at Guantanamo.

Obama said explicitly that he still wants to close the detention facility at Guantanamo, but he cannot now do so because Congress has taken action to bar transfers out of Guantanamo, especially to the U.S. mainland, for detention or even for prosecution for war crimes.  He accused “some in Congress” of attempting “to undermine” the administration’s authority to bring criminal charges in regular federal courts, and vowed to continue to resist such restrictions as “dangerous and unprecedented” challenges to his authority as Chief Executive.

A central feature of the new policy, the White House indicated, is a “periodic review” system for those whom the government decides cannot be released and cannot be prosecuted for war crimes.  While this process will not allow any detainee to challenge the legality of the initial decision to hold them in captivity, it does give each detainee not specifically facing a prosecution a review of detention — the initial review would be one year from now, with later reviews occurring every three years, with some shorter form of review every six months during that three-year span.

The new Executive Order Obama issued to implement the new review scheme has two potential limitations.  First, the Order acknowledged that each of the 172 detainees now at Guantanamo has “the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of the federal courts to determine the legality of their detention.”  (The Obama Administration, however, has another detention facility at Bagram air base outside of Kabul, Afghanistan, and it is resisting in court any effort to extend habeas rights beyond Guantanamo.)

A second potential check is a provision that read this way: “If, at any time during the periodic review process established in this order, material information calls into question the legality of detention, the matter will be referred immediately to the Secretary of Defense and the Attorney General for appropriate action.”  There was no further explanation.

While the President stressed that the new review process gives detainees more procedural rights than they formerly had, under a Pentagon review system that the Supreme Court in 2008 found to be an inadequate substitute for habeas challenges, the new system almost certainly will be challenged in civilian federal court as an unconstitutional mode of indefinite detention.   While there is the theoretical possibility that a civilian court might grant a habeas release order for any detainee at Guantanamo, a series of rulings by the D.C. Circuit Court have sharply curtailed the power of federal District Court judges to order actual release and have enhanced the strength of the government’s reasons for holding terrorism suspects.  Thus, lawyers for detainees facing prolonged detention without prosecution predictably will claim that the Constitution does not allow such Executive detention.

The Supreme Court, in its first ruling in 2004 on an issue arising out of the post-9/11 “war on terrorism,” upheld presidential power to order some detentions of those captured on an overseas battlefield.  It said there, however, that detention authority would become questionable if it was unduly prolonged.  Many of the detainees now at Guantanamo are in their eighth or ninth year of captivity.

Posted in Cases in the Pipeline, Detainee Litigation

Recommended Citation: Lyle Denniston, New claim to detention power, SCOTUSblog (Mar. 7, 2011, 4:20 PM), http://www.scotusblog.com/2011/03/new-claim-to-detention-power/