Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

My emphasis. As Marc writes, that sounds a lot like the administration will just simply hold them in legal limbo, as per the so-called “Fifth Category” of detentions outlined by President Obama in his May speech at the National Archives. Adam Serwer wrote a great piece on how that category of detainees has roiled the civil liberties community.

Now, the Obama administration has subsequently stated that it’s not going to seek any additional authority from Congress for such preventive detention. But that doesn’t solve the problem of what becomes of those detainees. Will the courts ultimately decide that the administration doesn’t, in fact, have the power to hold them without charge? And where will they be held if Guantanamo is to close? After all, if they’re moved into the United States, the courts will almost certainly exercise jurisdiction over them.

A possible clue comes in a recent and widely discussed report from Ken Gude of the well-connected Center for American Progress. As my colleague Daphne Eviatar reported, Gude proposed simply sending the detainees to Bagram Air Field in Afghanistan — which would, in effect, create Neo-Guantanamo. There has been a lot of discussion over whether Gude was floating a trial balloon for the administration. We may soon see.

Update: Adam corrects me on what Gude was actually proposing:

Spencer Ackerman speculates that these detainees might be sent to Bagram. That was the Bush administration’s solution for avoiding judicial scrutiny of detention, but that approach is distinct from what Ken Gude and the Center for American Progress are proposing. The CAP proposal is to send those detainees who were captured in the Afghanistan-Pakistan area, and who have lost the first round of their habeas appeals, back to Bagram. Sending “fifth category” detainees captured in third countries would jeopardize the government’s position in appealing the judicial ruling that granted detainees captured in third countries and held at Bagram habeas rights.

Apologies to Ken; I appreciate the correction.

And she’s right. As I reported last week, the Senate Judiciary Committee ended up adopting almost all the Republican changes to the bill that removed or watered down civil liberties protections, while voting against most of the reforms proposed by Sens. Russ Feingold (D-Wis.), Richard Durbin (D-Ill.) and Arlen Specter (D-Pa.), which would have limited the FBI’s powers under the Patriot Act to going after what the law was designed to attack: international terrorism.

The result, as Feingold put it, was that the Senate Judiciary Committee had become the “prosecutor’s committee” — accepting virtually every recommendation from the FBI and Justice Department prosecutors to expand their powers.

“The ACLU is encouraged by the willingness of congressional leaders to lay out details of immigration reform, but we strongly oppose any reforms that would unnecessarily violate the privacy of Americans,” said Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office, in a statement issued today. “We urge lawmakers to reject any proposed immigration reform measures that include a biometric national worker ID system or a universal compulsory electronic employment verification system. These systems come at enormous cost to the American public and do little to prevent the hiring of undocumented workers. It is unacceptable to force Americans to be fingerprinted and photographed in order to work.”

The idea of a national ID and employment verification system is something immigration reform advocates often include as a way to appease critics of a comprehensive bill that would legalize some currently illegal immigrants. But the ACLU and other civil liberties groups have long opposed it.

Today the ACLU also criticized the controversial portion of the immigration laws that allow, under section 287(g), local law enforcement to enforce federal immigration law, which has led to “racial and ethnic profiling across the country” and discouraged immigrants from cooperating with police, as I’ve discussed in previous posts. The Department of Homeland Security under Janet Napolitano has actually expanded the 287(g) program, despite the documented problems.

Congress should also end the prolonged detention of illegal immigrants who pose no risks, allow immigration judges to consider U.S. citizen children and spouses when deciding deportation cases, and allow the courts to ensure fair immigration hearings, the ACLU said today. DHS recently announced some reforms to immigration detention, which included a promise to consider alternatives to detention for illegal immigrants who aren’t considered dangerous. Those who advocate cracking down on illegal immigrants, however, strongly oppose letting them go free until their deportation hearings, arguing that there’s little incentive for them to show up to immigration court if they might be deported.

As for what the ACLU wants to see in a comprehensive immigration reform bill, here’s the group’s statement on that.

Americans’ surprise at the announcement may be best explained by a quick look at Obama’s domestic policies when it comes to the international war on terror — so let’s take a glance at Glenn Greenwald’s page today at Salon. Just below his discussion of Obama’s Nobel prize is a lengthy analysis of how the president, now with the help of Congress, has repeatedly suppressed evidence of war crimes committed by the previous administration.

From trying to exempt abuse photos from the Freedom of Information Act to dismissing torture cases on “state secrets” grounds, encouraging Congress to limit civil liberties protections against broad-based FBI snooping and refusing even to investigate cases where the Defense Department appears to have tortured detainees in its custody (let alone investigating the policymakers who approved of the abuse), the Obama administration has so far amassed a disappointing record on “peace”-related activities at home.

The Nobel Committee was obviously looking at different things when it made its award, and emphasized Obama’s ability to “capture the world’s attention” and offer people hope for the future. That’s a good start, and hopeful rhetoric is important and a welcome change for the so-called “leader of the free world.” But true diplomacy and progress and “peace” can’t come from hiding the brutality of the past.

So far, just as he’s promised a new diplomacy, the President has made lots of hopeful promises about a new transparency and accountability in government. He has yet to follow up on them.

“We’re deeply disappointed that the Obama administration sided with the committee Republicans to pass amendments to remove reforms from the already watered-down bill,” he said this afternoon, referring to seven amendments, five of which were introduced by Senator Jeff Sessions (R-S.C.), which removed civil liberties protections and which Sessions said were mostly recommended by the Obama administration’s FBI and Justice Department in closed-door classified briefings.

“We’re very disappointed in the final bill that was voted out of committee,” said Bankston. “It has fewer reforms than the original bill from Sen. Leahy, and it’s a very far cry from Sen. Feingold and Durbin’s JUSTICE Act.” The JUSTICE Act would have required the government to specify more clearly the targets of their investigations and their connections to terrorism, to keep the FBI from using its authority to engage in broad-based data-mining of Americans’ phone, library and business records.

The amendments adopted included removing a requirement that the FBI periodically review its gag orders on National Security Letter recipients, removed judicial review for those gag orders, and watered down an effort to heighten the showing required when the FBI is seeking library records. The text of the final amendments and votes on each is available on the Judiciary Committee’s Website here.

Bankston was also disappointed that the Judiciary Committee refused to consider amendments to the FISA Amendments Act passed last year, which he calls “a much graver threat to civil liberties.” Feingold’s attempt to offer an amendment was withdrawn when Committee Chairman Leahy said he’d oppose it on procedural grounds.

To Bankston, this was all evidence that Congress is far too willing to cave to the wishes of a Democratic administration, even if its proposals are just as bad for the civil liberties of Americans as the Republican administration’s were.

“In 2005, the Judiciary Committee was able to pass much stronger reforms under a Republican administration,” said Bankston. “Now, in a position of power and with a vaunted supermajority, the Democrats are still bargaining against themselves rather than having a united front and introducing new civil liberties protections. I think it’s because of the White House’s position that these powers need to be renewed. There’s an unwillingness to consider even minor reforms.”

The American Civil Liberties Union was similarly disappointed, and Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office, came out with this statement this afternoon:

We are disappointed that further changes were not made to ensure Americans’ civil liberties would be adequately protected by this Patriot Act legislation. This truly was a missed opportun Sity for the Senate Judiciary Committee to right the wrongs of the Patriot Act and stand up for Americans’ Fourth Amendment rights. The meager improvements made during this markup will certainly be overshadowed by allowing so many horrible amendments to be added to an already weak bill. Congress cannot continue to make this mistake with the Patriot Act again and again. We urge the Senate to adopt amendments on the floor that will bring this bill in line with the Constitution.

Responding to Sen. Dianne Feinstein’s (D-Calif.) assurances that the bill, as proposed, is necessary and important based on classified information she’s received that can’t be shared with the American public, Specter demurred.

“We have moved a distance from where we were before, in requiring a foreign terror connection,” he said, noting that several provisions of the bill no longer require that. “In 2005, the bill was handled unanimously. The core of the bill required a connection with a foreign power. That’s really what we’re looking for here in the Patriot Act. When that requirement is taken away it seems to me it guts the structure of the Patriot Act. You have the provision of lone wolf, with no connection to a foreign power, which is the core of the patriots act. It hasn’t been used at all. It seems to me something this committee ought not rush to retain.”

As for “roving wiretaps,” Specter added that he opposed those back in 2001 because they failed to require the FBI to specify who they’re wiretapping. “The whole point of probable cause for search and seizure is probable cause with specificity,” said Specter. “Our committee ought to be more assertive as a guardian of separation of powers. This has a philosophical connection to what we’re doing on state secrets,” he said, referring to the state secrets privilege that the Justice Department has repeatedly asserted to dismiss lawsuits charging government wrongdoing. “Now all you have to do is have the executive branch assert state secrets and that closes the matter. … It’s still the executive branch, without judicial review to take a look.”

He continued, “I would hope this committee would be more assertive of the separation of powers under the Constitution.”

After the House Judiciary Committee worked for days shortly after September 11, 2001 to hammer out a bill that both parties’ representatives unanimously agreed to, Conyers recalled with obvious irritation, the House Rules committee managed to hack it up so much behind closed doors that by the time the full House voted on it the next day, it was unrecognizable.

“Then Chairman Dreier” — referring to Rep. David Dreier (R-Calif.), then chairman of the House Rules Committee — “under lord knows whose instructions, substituted that bill for another bill, that we at Judiciary had never seen. So we come here today now to consider what we do with those parts that are expiring.” Conyers proceeded to say that many of the problems being discussed at the hearing with the current law would have been addressed by the original bipartisan one, such as offering an opportunity for people harmed by the Patriot Act’s abuses to seek redress. The original law also “may have eliminated, or simplified, litigation about Patriot Act abuses that continue today,” said Conyers.

Rep. Jerrold Nadler (D-N.Y.), who chaired today’s hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, backed up Conyers’ version of what happened.

“We held in this committee five days of markup and achieved unanimity on the Patriot Act. Then the bill just disappeared. And we had a new several-hundred-page bill revealed from the Rules Committee” that had to be voted on the next day, before most members of Congress even had a chance to read it, said Nadler.

None of the Republicans at today’s hearing challenged the Democratic chairmen’s version of events.

As Spencer wrote today, someone in the administration told ProPublica’s Dafna Linzner and The Washington Post’s Peter Finn that yes, civil liberties groups support the idea of an order that “would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war.” That statement amazed the civil liberties groups that Spencer then spoke to. I’ve gotten similar reactions from civil liberties lawyers I’ve been speaking to since Friday as well.

But it turns out that there are some progressives, and some who’d even traditionally be called civil libertarians — though not representatives of the traditional civil liberties groups Spencer and I have spoken to — who have been floating the idea, but in a more limited way than the Post story suggested.

Specifically, a group of prominent military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of preventive detention, but instead, to rely on the one we already have — with modifications, if necessary. Although they don’t specifically recommend an executive order, that’s the logical way for the administration to modify and clarify its authority.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which I received just this afternoon. It’s signed by 11 prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to president Obama; and Thomas Wilner, a prominent corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” these experts write, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

The letter specifically tries to steer President Obama away from proposing or supporting any new legislation that would create a new preventive detention authority.

Ken Gude at the influential Center for American Progress has also suggested that the president should clarify his authority of detention under the laws of war. In a recent memo he co-authored with Kate Martin of the Center for National Security Studies, he and Martin write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail this afternoon that he sent from Paris, Gude says he never specifically proposed an executive order, but supports the idea and adamantly opposes new legislation.

Gude laid out his support publicly for a limited system of preventive detention, authorized by the laws of war which allow detention of combatants during a military conflict, on CAP’s site and in The Guardian.

Even David Cole, the normally staunch civil libertarian law professor at Georgetown, has argued that the administration has that authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.” (Cole was pilloried for taking that position by Kenneth Anderson in Opinio Juris, who asks, “if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years? Is this the same David Cole who appeared on panels with me over the last few years and who didn’t seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release?”)

Let’s set aside for now the very legitimate question of whether these progressive civil libertarians would have taken the same position during the Bush years, or if they just inherently trust President Obama to handle battlefield detention against a non-traditional enemy better than Bush did. The positions these people are taking is informed, at least, by what the Supreme Court ruled in Hamdi v. Rumsfeld, although that case pertained only to the detention of Taliban fighters, while we were at war with Afghanistan. And it’s in line with what the federal courts have been ruling, with some variations, in a string of habeas corpus cases.

The proposal for an executive order to clarify the Obama administration’s position on the extent of its wartime authorities of preventive detention is very different, however, from the controverisal position that some more conservative lawyers and think-tank scholars like Jack Goldsmith, Benjamin Wittes and Neal Katyal (traditionally a moderate Democrat and now deputy solicitor general in the Obama administration) have been promoting. The Wittes proposal released on Friday with Brookings colleague Colleen Peppard, for example, would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war.

On Monday, Goldsmith, a Harvard law professor and former head of the Office of Legal Counsel at DOJ under President Bush, joined Wittes, a Brookings scholar, in a Washington Post op-ed to argue that a preventive detention scheme should be debated in Congress and spelled out clearly through legislation, not by the president by executive order. To them, an executive order would be “a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

That, it seems, is where the current debate lies. Committed civil liberties advocates such as the ACLU, Center for Constitutional Rights, Human Rights Watch and others may still be arguing against a preventive detention scheme entirely, but given that the Obama administration has consistently argued its right to detain “combatants” (however they’re defined) during what it continues to call a “war” — not only in the Gitmo habeas cases but in regards to the detention of some 600 men imprisoned at the U.S. Air base in Bagram, Afghanistan — it’s impossible to imagine that the administration is going give up that authority in the future.

Although as Spencer pointed out, White House spokesman Robert Gibbs did say on Monday that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people,” he certainly didn’t rule out basing a preventive detention system on some other authority — whether granted by the laws of war, or by an act of Congress.

I’ll be writing more soon about what that Congressional act might look like.

The debate over so-called “preventive detention” has obscured the real issues facing the administration. The laws of war have always allowed the military to detain fighters seized on the battlefield, indefinitely without charge until the end of hostilities. The Supreme Court’s Hamdi decision in 2004 approved such traditional law of war detention for fighters seized in Afghanistan. Some such fighters are now detained in Guantanamo (where they are entitled to habeas) and some are detained in Afghanistan. US forces are still engaged in combat in Afghanistan and now in the border region of Pakistan and will be for some indefinite period. I have no doubt that the Obama administration will continue to claim the authority to “preventively” detain fighters seized on the battlefields of Afghanistan or the mountains of Pakistan. No additional authority from Congress is necessary for them to do so and we and other civil libertarians for many years have recognized that such traditional law of war detentions without charge are perfectly proper.

The issue that has yet to be resolved by the Obama administration is whether they will continue the Bush administration’s claim of authority to pick up suspected terrorists far from any zone of active hostilities and hold them without criminal charge but with some form of ersatz due process. The [Jack] Goldsmith/[Benjamin] Wittes etc. faction has long been urging a new statute to allow detentions of suspected terrorists without any criminal trials based on secret evidence from intelligence agencies. I take the Washington Post article that the administration may not endorse legislation as a potentially positive sign that this pernicious idea may be rejected.

If that happens, we will have much to rejoice about. At the same time, the Obama administration will still have to deal with the so-called “legacy” cases; individuals who should never have been picked up under the laws of war, who are now in Guantanamo (and a handful in Bagram) and who in order to continue to be detained, should immediately be charged with criminal offenses.

Recall that Martin told me on Friday that she was a civil-libertarian defender of using an executive order as a way of forestalling an over-broad legislative proposal for preventive detentions.

Writing over at Daily Kos, David Waldman, who attended the administration’s May 20 heart-to-heart with civil liberties groups, is similarly perplexed, and doesn’t recall anyone at that meeting making such a suggestion:

My memory of that meeting, of course, is by no means the definitive record. But given the specific focus of my own participation in that meeting, it seems rather unlikely that I would have missed anyone’s suggestion that such a policy be implemented by unilateral action of the President. In fact, my comments at the meeting began with the specific warning that any new policies put in place by this administration would undoubtedly survive it, only to be abused by some succeeding administration, no matter what President Obama’s intentions in implementing them. So while I see the point in arguing that an executive order can be more easily rescinded, it also seems obvious that it can be reissued just as easily. Or more likely, that a new and more draconian one can be issued in its place, with President Obama’s serving as precedent. I doubt that would have escaped notice or comment.

An administration official emailed Marc Ambinder to walk the executive order story back. Waldman doesn’t find the denial compelling.

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