The Obama administration’s Guantanamo task force has concluded that there are approximately 50 detainees held at the facility in Cuba that the government should continue to detain, indefinitely, without trial. Either the task force reached that decision in Month 11 out of its 12-month operation or a senior administration official on a conference call in December passed along some incorrect information.
All this raises the question of how the powers claimed by the Bush admin– oh, sorry, the Obama administration to detain someone indefinitely can withstand a legal challenge. The Supreme Court ruled in 2008 that Guantanamo detainees have a right to habeas corpus, a decision that removed the last argument for keeping the detention facility open as a venue for holding someone without charge. Obama plans to move the remaining detainees to the Thomson Correction Center in Illinois. Does the administration expect the courts to suddenly determine that the Constitution of the United States applies less to Illinois than it does to a naval base in Cuba? The cynical view is that the administration is looking to the courts to take the political heat of determining that the detainees must either be charged in some venue — civilian trials or military commissions — or released.
But the administration still needs Congress to provide the money for it to purchase Thomson. It plans to go to Congress at some point and say, “We need money to close one facility used for indefinite detention and purchase … well, another facility we plan to use for, among other things, indefinite detention. And we’re going to start that facility over from scratch!” Why would Congress approve that money?