Congress's cowardly move to tie the president's hands on detainee transfers

Hypocrisy on the Hill. WaPo Editorial
Congress's cowardly move to tie the president's hands on detainee transfers
The Washington Post, Sunday, July 5, 2009

FOR YEARS, Democrats clamored for the closing of the detention center in Guantanamo Bay, Cuba, using the prison to pummel President George W. Bush for abusing his authority, violating domestic and international law, and tarnishing the reputation of the United States. Sen. Dianne Feinstein (D-Calif.) felt so strongly about the issue that she sponsored legislation in 2007 to force Mr. Bush to shutter the facility.

Now lawmakers are making it nearly impossible for President Obama to close the notorious prison by year's end, as he promised to do.

Ms. Feinstein, Senate Majority Leader Harry M. Reid (Nev.) and 88 other senators -- including every Republican -- voted to attach to a must-pass, supplemental war spending bill several provisions that tie the president's hands. Ms. Feinstein complained that the president lacked a detailed plan to deal with detainees. Facing fear-mongering opponents who essentially accused Mr. Obama of having his heart set on letting hard-core terrorists roam through American backyards, the Senate withered and collapsed, with Maryland Democrats Barbara Mikulski and Benjamin L. Cardin and Virginia Democrats James Webb and Mark Warner joining the pack. Only six senators -- all Democrats -- had the courage to vote against this wrong-headed amendment: Richard J. Durbin (Ill.), Tom Harkin (Iowa), Patrick J. Leahy (Vt.), Carl M. Levin (Mich.), and Rhode Island's Jack Reed and Sheldon Whitehouse.

As a result of the vote, the president is prohibited from using taxpayer funds to order the release of any detainee into the United States, including those cleared by the Bush administration and the federal courts; he is likewise forbidden to bring any Guantanamo prisoners to the United States for preventive detention. The president must give lawmakers a 45-day heads up before ordering any detainee prosecuted in a U.S. court proceeding and he must give Congress 15 days' notice of his decision to send a detainee to another country.

It is therefore easy to understand why Mr. Obama may be tempted to circumvent lawmakers: The Post reported that he is considering an executive order to establish a preventive detention regime for those who may be too dangerous to release but against whom there is not enough usable evidence to file formal charges in a traditional courtroom. But he should resist the temptation of acting alone. Mr. Bush often did end runs around lawmakers for fear of being constrained; eventually the courts circumscribed his powers more than they likely would have if he had worked with Congress. Mr. Obama's best course lies in opening discussions with Congress on fashioning a preventive detention regime that will ensure due process and humane treatment of detainees. Let's hope that there will be leaders on the Hill available for thoughtful discussion.