JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England Law | Boston say that despite his campaign promises, it seems that President Obama has made the political calculation that anything other than the indefinite detention of 49 current Guantanamo detainees is simply not worth the political risk….

Last week, a presidential task force charged with assessing the feasibility of prosecuting suspected terrorists currently detained at Guantanamo Bay finished its evaluation of the cases. Relying upon the work of the task force, President Obama has concluded that of the remaining detainees, 110 should be repatriated or released to a third county, 40 should be tried either in federal court or by military commission, and 49 should be detained indefinitely without trial because they are too difficult to prosecute and too dangerous to release.

The decision to detain these individuals without trial is not unexpected. In spite of then-candidate Obama’s promises, it seems President Obama has made the political calculation that to provide these suspects any additional legal process is simply not worth the political risk.

Indeed, the administration’s decision was foreshadowed by an earlier action last spring. Before assuming office and in his first few months thereafter, President Obama acknowledged that there may be some detainees at Guantanamo who could not be tried or released. The President indicated that he would seek additional Congressional authorization to develop criteria, and standards to govern the indefinite detention of these individuals. Just a few months later, the President announced that he would not seek additional authorizations, and that the Authority to Use Military Force (AUMF), enacted immediately after September 11, afforded him the necessary authority to detain individuals without trial indefinitely.

The reason for the change may lie in the anticipation of the political opposition the President faced from both parties when he announced that some of the Guantanamo detainees would be moved to the United States as part of his plan to close the detention facility. Congress even took steps to deny the President funding to transfer detainees to the United States, as well as imposing a notice requirement.

The vocal and swift opposition to the President’s plan may suggest a lack of political will to deal with the thorny issue of indefinite detention.

To be sure, among the many difficult issues raised by the Guantanamo detentions, the question of what to do with individuals who cannot be tried or released is particularly challenging. We do not know very much about these 49 detainees. They may be the worst of the worst—or at least the worst of the rest—but it also may be that the United States can no longer bring them to justice for practical reasons.

Consider that trying some of these individuals could expose intelligence sources, as well as intelligence-gathering means and methods—though that risk is significantly reduced under the new military commission rules that establish procedures for dealing with sensitive information. Consider also that some of these detainees likely were subjected to interrogation techniques so coercive as to taint any evidence that could be brought against them in federal court or in military commissions.

At the same time, the decision not to seek additional Congressional authorization for the indefinite detention of these 49 detainees, and those similarly-situated terrorism suspects the United States may capture in the future, is troublesome. At the most fundamental level, it sets a dangerous precedent that can be repeated and expanded any time the Executive determines that indefinite detention or similar action is in the best interests of national security.

In addition, the President’s decision not to seek and obtain Congressional support and authorization for such action makes that decision much more likely to be subjected to challenge in the courts. If we have learned anything from the testing of President George W. Bush’s terrorism policies before the courts, it is that Congressional involvement from the start likely would have resulted in less wasted effort in developing the legal means to address terrorism suspects and detainees.

Further, the lack of transparency in President Obama’s decision-making leaves us to wonder about the real reasons for the continued detention of these individuals, fostering continued doubts about the government’s ability to make accurate assessments of such individuals. At this point, we may rightly ask whether, in light of the many policy failures over the past eight years and the government’s poor record of deciding which terror suspects are in fact the “worst of the worst,” these 49 detainees really pose the kind of threat that the government alleges.

Finally, the President’s decision once again backseats Congress on a major issue of national security, an issue that may have a serious domestic impact. Clear statutory authority from Congress permitting the President to indefinitely detain those who pose a danger to the citizens of the United States would go a long way toward alleviating the expressed fears about trying some terror suspects in Article III courts, and about closing the detention facility at Guantanamo.

Victor Hansen teaches criminal law and criminal procedure and Lawrence Friedman teaches constitutional law and state constitutional law at New England Law | Boston. Their book, The Case for Congress: Separation of Powers and the War on Terror, was published in 2009 by Ashgate..
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