Civil Libertarians, Preventive Detention & Obama

So over the next couple of days, me and my Washington Independent colleague Daphne Eviatar will have a series of pieces and posts about the Obama administration’s deliberations about embracing an apparatus of preventive detention. Today I’ve got my first installment up, which focuses on the civil liberties community preparing to resist any introduced legislation or (less likely, it seems) executive order creating it. Among the things I found for the piece is that the administration’s task force on detentions policy met with most of the civil-liberties community’s members in good standing for two hours on June 9 at the Justice Department to hear their perspectives. What it means is less certain.

Administration officials who would not speak for attribution cautioned that much remained undecided by the administration beyond what Obama had stated publicly, as debate remains ongoing, both within the task force and within the administration more broadly. One knowledgeable source pointed to career government attorneys across the Justice, Defense, and Homeland Security Departments and the National Security Council who had been working on detainee and interrogation issues for years — officials who had been as critical of Bush administration legal excesses as they are Obama-era enthusiasm for fundamental change — as key figures in determining the nuts and bolts of the internal debate. “All those people, consistently, have been warning that the way we pick these people up can’t be separated from the way we deal with them,” the source said. “Schematically, they’re in the conservative-Democrat camp. You wouldn’t find them fundamentally different than Ike Skelton or Carl Levin,” referring to the chairmen of the House and Senate armed services committees.

Even so, human rights groups are now preparing to oppose any forthcoming legislative proposal or executive order on preventive detention. “We don’t want the administration to seek to legalize a system of preventive detention by executive order or by statute,” said Sharon Bradford Franklin, a senior counsel at the Constitution Project who attended the June 9 meeting.

 A lot of this grew out of my questions on Friday about an anonymous administration official citing the civil liberties community as giving the Obama team cover for an executive order on preventive detention. One of the people quoted in the piece from the civil-liberties community didn’t want to categorize the community as emerging in opposition to the administration, and that’s understandable, both from a political perspective and from a substantive one. These sorts of relationships are complicated and they extend beyond single issues, and, given effort, survive disagreements. But the relationship is becoming more and more complicated the more the administration embraces a position that the civil liberties community has to reject on a bedrock principle. 

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Spencer Ackerman

Spencer Ackerman