Eight years ago, Donald Rumsfeld asked Jim Haynes whether they should seek new legislation on detainee treatment “so we get off the hook legally.” Rumsfeld’s request and Haynes’ response are here: PDF.
Haynes admitted that legislation could “reduce arbitrariness” but warned that by asking for legislation a precedent would be set for future presidents. In addition, Haynes cautioned, legislation might “limit the President’s ability . . . to gather intelligence from those detained at GTMO.”
Haynes urged an approach of legislation lite: “The Department could adopt a plan for the periodic review of the need for continued detention of those individuals detained at GTMO, which could reduce any arbitrariness present in the current system. The appearance of arbitrariness could be reduced through making that plan public, to the maximum practicable.”
That would handle the public. And that is exactly the approach Obama has taken. The United States locks people up without the right to a trial but with great systematized formality and periodic bureaucratic bullshit.
But what about Congress? “We need not seek legislation in order to reach out to Congress,” Haynes advised. “There is value in going to the Hill and inviting their informal participation, such as in seeking their comment on any long-term detention plan that we might wish to adopt.”
That settles that. The executive can permit the first branch of our government to pointlessly and informally comment, and Congress will feel involved. That should work. It’s working well for Obama — well enough that in cases like the Libya War he’s been able to dispense with it.