Indefinite Detention, Cont’d

Regarding the Obama Administration’s reported plans to draft an executive order allowing for the indefinite detention of terrorism suspects, the Anonymous Liberal argues that political cowardice is to blame:

I guess this is a long way of saying that I think the best explanation for what’s going on here is simple political cowardice. I suspect that Obama, if not subject to political pressure, would not be in favor of indefinite detention. But I think he’s unwilling (or at least very wary) of giving the Republicans this kind of political fodder to attack him with. That’s not a defensible reason for doing the wrong thing, of course, but I suspect that it is the explanation. Doing the right thing in this case would carry significant political risk.

As for the prospect of instituting such a program through executive order, as opposed to legislation, it’s a bit of a wash. On the one hand, it would be deeply troubling to see Obama bypass Congress, which is something his predecessor was fond of doing. On the other hand, the courts will be much more likely to strike down unilateral executive action, which could result in some very favorable case law. Part of me suspects that the Obama administration may actually be hoping that the courts weigh in and limit what they’re allowed to do. To the extent that happens, it provides them with political cover to do the right thing. Of course, such a strategy can also result in court rulings that uphold unilateral exercises of executive power, which is the worst of both worlds.

Whether or not we sympathize with some of the political difficulties the Obama administration faces, it is incumbent upon those of us who care about civil liberties and the rule of law to apply continuous and aggressive pressure on the Obama administration to do the right thing and to live up to the principles they claim to believe in. If there is no political pressure coming from the left on this issue, then the only pressure the administration will feel is demagoguery coming from the right.

This seems to me apt in every way but one.  That is, I think that Obama, being a scholar of Constitutional Law, probably recognizes the importance of things like habeas corpus and so on, but I think A.L. is guilty of wishful thinking when it comes to his suspicion that Obama is hoping the courts strike down an executive order granting him this power.  I understand the political calculus that he thinks underlies the decision:  if the courts rule against the executive and all those wacky terrorism suspects are set free and one of them blows up a building or something, then it’s the fault of the judiciary and their damned burdens of proof, not the executive.  But I think playing a game like that, as A.L. points out, is much more likely to lead to decisions “that uphold unilateral exercises of executive power, which is the worst of both worlds”–especially given the power grab, overseen by the judiciary, by the executive branch during the Bush administration.

Anyway, those are my two cents.  I’d include a picture, but I don’t know what would be appropriate.  How about this?


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