"Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.
Such an order 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. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said. (...)
Under one White House draft that was being discussed this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system.
Such detainees -- those at Guantanamo and those who may be captured in the future -- would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge."
"One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.
"Going forward, unless it's an extraordinary case, you will not see new transfers to the U.S. for indefinite detention," the official said."
"Congress has already approved traditional law of war detention in the Authorization to Use Military Force of 2001. The Supreme Court sustained military detention authority of those detainees captured in zones of active combat in 2004 in Hamdi v. Rumsfeld, so President Obama is on firm legal ground should he choose to limit military detention to those circumstances. (...)
This would be a significant shift from the Bush administration’s policy that swept into U.S. military detention virtually anyone suspected of terrorist activity captured anywhere in the world. It would restore the bright line between criminal and military detention, a crucial distinction to preserve not just in the United States, but also in other countries that look to or use the U.S. as an example."