I was going to post this morning about my bewilderment at President Obama’s comments last night about “legal architecture” for the War on Terror, but as Jack noted, Josh Gerstein has already done so. And Josh has said just about everything I was going to say. So I will just link again to his fine piece and pull for Lawfare readers what seems to me the essential points in the history he recounts:
Obama made the comment just after he mentioned Guantanamo, so it seemed he may have been referring to some type of legislation to regulate the detention of war on terror prisoners. The remark echoed something the president said more than three years ago, in his only speech he devoted to the issue as president.
. . .
If that’s what the president was talking about Thursday, it’s a bit perplexing because the Obama administration decided later in 2009 not to pursue such legislation, even though officials determined that 48 of the men at Gitmo needed to be held indefinitely without trial.
In August 2010, Sen. Lindsey Graham (R-S.C.) filed a bill that would have had Congress set some rules for the process of long-term detention of alleged terrorists. The administration, which had been negotiating intensely with Graham months earlier, didn’t take a position on the measure, which essentially went nowhere.
Last year, Congress passed a bill that appeared to give its general endorsement to the procedures the courts have worked out to review the detention of Guantanamo prisoners. Obama initially threatened to veto that measure, but relented after it was watered down. He also signed that and several other measures that effectively made it impossible for him to carry through on his plan to close Guantanamo.
Throughout the discussions last year, administration officials signaled that they would have preferred Congress not dig into the issue. However, Obama may have been alluding to hopes some in the administration had early in their talks with Graham that a “grand bargain” might have been possible that would have combined closing Guantanamo with passing detention-related legislation. Those hopes were well dashed by last year and officials seemed uninterested in engaging on detailed detention-related legislation with Congress so stridently opposed to closing Guantanamo and bringing some of its prisoners to the U.S.