During his May speech on civil liberties at the National Archives in May Obama argued for the idea of creating a legal mechanism for indefinitely detaining people without charges. He said at the time:
I know that creating such a system poses unique challenges. . . . But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees — not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. 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. As our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. . . . [I]f we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future.
A new preventive detention law would have permanently institutionalized that power, almost certainly applying not only to the “war on Terror” but all future conflicts. It would have endowed preventive detention with the legitimizing force of explicit statutory authority, which it currently lacks. It would have caused preventive detention to ascend to the cherished status of official bipartisan consensus — and thus, for all practical purposes, been placed off limits from meaningful debate — as not only the Bush administration and the GOP Congress, but also Obama and the Democratic Congress, would have formally embraced it. It would have created new and far more permissive standards for when an individual could be detained without charges and without trials. And it would have forced Constitutional challenges to begin from scratch, ensuring that current detainees would suffer years and years more imprisonment with no due process.
Beyond that, as a purely practical matter, nothing good — and plenty of bad — could come from having Congress write a new detention law. As bad as the Obama administration is on detention issues, the Congress is far worse. Any time the words “Terrorism” or “Al Qaeda” are uttered, they leap to the most extreme and authoritarian measures. Congress is intended to be a check on presidential powers, but each time Terrorism is the issue, the ironic opposite occurs: when the Obama administration and Congress are at odds, it is Congress demanding greater powers of executive detention (as happened when Congress blocked Obama from transferring Guantanamo detainees to the U.S.). Any process that lets Lindsey Graham, Joe Lieberman and Dianne Feinstein anywhere near presidential detention powers is one that is to be avoided at all costs. Whatever else is true, anyone who believes in the Far Left doctrines known as the Constitution, due process and what Thomas Jefferson called “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution” (i.e., jury trials) should consider it a very good thing that the Congress is not going to write a new law authorizing presidential preventive detentions. However bad things are now, that would have made everything much worse.
All that said, in a practical sense, this is still an extremely incremental — one might even say cosmetic — development.
So all one can really say about all of this is that while no improvements have been made, something that would have been extremely bad has been averted, at least for now.