Obama to Use Current Law to Support Detentions

http://www.nytimes.com/2009/09/24/us/politics/24detain.html

Obama to Use Current Law to Support Detentions
By PETER BAKER
September 23, 2009

WASHINGTON — The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday.

Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.

In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.

But President Obama’s advisers are not embracing the more disputed Bush contention that the president has inherent power under the Constitution to detain terrorism suspects indefinitely regardless of Congress.

The Justice Department said in a statement Wednesday night that “the administration would rely on authority already provided by Congress” under the use of force resolution. “The administration is not currently seeking additional authorization,” the statement said.

The department pointed out that courts would continue to review the cases of those held without charges through habeas corpus hearings. The Washington Post first reported the decision.

The legal interpretation applies to detainees whom the government concludes should be held because they are a continuing danger to national security but who cannot be brought to trial for various reasons, like evidence tainted by harsh interrogations. Although it has not determined definitively how many detainees that applies to, officials said it would probably be about 50 of the more than 200 men still held at Guantánamo. The government plans to bring the others to trial or send them to other countries.

Officials said the decision applies only to those already held at Guantánamo. They said it remained an open question whether the administration would seek legislation or establish a new system for indefinite detention of suspected terrorists captured in the future.

Justice Department officials informed representatives of human rights and civil liberties groups about the decision not to seek the new legislation for the current detainees at a meeting last week. Officials said Wednesday that the position was in keeping with the evolving arguments being made by the administration in court over recent months.

“The position conveyed by the Justice Department in the meeting last week broke no new ground and was entirely consistent with information previously provided by the Justice Department to the Senate Armed Services Committee,” the department’s statement said.

Still, the position surprised some critics who had expected after a speech by Mr. Obama in May that he would seek legislation to put the system of indefinite detention on firmer political and legal ground. In that speech at the National Archives, Mr. Obama said that he was considering continuing indefinite detention in some limited cases but that he would not act unilaterally.

“We must recognize that these detention policies cannot be unbounded,” he said at the time. “They can’t be based simply on what I or the executive branch decide alone.”

He said he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.”

Officials said Wednesday that working with Congress did not mean the president would seek legislation, only that he would consult lawmakers.

Given the opposition in Congress to Mr. Obama’s plan to close Guantánamo, especially if it means transferring detainees to prisons on American soil, the prospect of writing legislation that would pass both houses appears daunting at best.

Sarah E. Mendelson, a scholar at the Center for Strategic and International Studies who led a study about closing Guantánamo, said forgoing legislation was "overall a good step" because it prevented Congress from making things worse. "We don’t know if it closes the door definitively on efforts to institutionalize detention without charge," she added, "since the White House might seek to do this by itself."

A version of this article appeared in print on September 24, 2009, on page A23 of the New York edition.