There’s still a basic confusion about what question the ‘re-habeas’ review panels set up for prolonged detention of terror suspects is supposed to answer. How can a judge establish whether someone’s still a threat to the U.S. — a question that doesn’t have anything to do with the law? Ah, but maybe a judge won’t, according to Charlie Savage’s reporting:

The Obama proposal, by contrast, would establish a “periodic review board” drawn from many agencies, not just the military, and modeled on a parole board, one official said. Detainees would be represented by lawyers and would have greater access to some of the evidence against them.

Among the details yet to be determined are how often each detainee’s files would be reviewed, and how often he would receive a full-blown hearing.

OK, that’s at least internally consistent. A threat assessment is an executive prerogative, not a judicial one.

But notice what that makes this panel: the executive branch reviewing its own assessment. The presence of a lawyer makes… what difference, in that case? Increased access to the evidence against a detainee is an improvement. But if this works like Charlie says it does, than it really is Administrative Review Boards 2.0. What’s to stop one of those reviews from simply saying someone can be held forever without charge? Preventing that self-assessment, after all, is precisely the rationale Obama floated for coming up with the panel in the first place, to prevent abuse of the detentions power.

Then there’s the question Tom Malinowski asks in Charlie’s piece: is this about the adjudication of the remaining Guantanamo population or about establishing guidelines for the next wave of terrorism detainees? Everyone can agree there has to be some framework for those additional detainees; and everyone also agrees it has to be bounded by law. Beyond that, there’s no substantive agreement. And there’s one big step overlooked in this whole debate.

No one considers battlefield detentions, as in Afghanistan, problematic as an executive prerogative. That’s justly and unproblematically a military necessity. When the U.S. is no longer at war in Iraq or Afghanistan, for instance, it won’t have the power to detain Iraqis or Afghans. But the U.S. has never clarified — and the AUMF does not clarify — if it’s declaring Battlefield Earth. (International lawyers: would the U.S. even have that power?) That’s really what it will have to declare if it wants authority going forward for an indefinite-detentions structure. You can chalk the existing international GTMO population up to early, ad hoc excesses.

But this is precisely why Buck McKeon wants a new AUMF, to clarify that the war on al-Qaeda allows for legal authority to detain people from Yemen, Somalia, Pakistan, and inevitably Europe and probably America until the cessation of hostilities — which will be the 13th of Never, because how do you even know when you cease to be at war with al-Qaeda? Without those missing declarations — which are justly a matter of congressional debate, even though you can count on Congress to adopt the most demagogic stance possible — it’s doubtful that an executive order ostensibly intended to restrict a detentions authority will do any such thing.

Spencer Ackerman

Spencer Ackerman