The Obama administration’s legal team can’t decide who it can and can’t detain indefinitely without trial, with interviews and legal briefs revealing deep internal disagreement. President Obama doesn’t subscribe to George W. Bush’s view of presidential detention powers as essentially unlimited, so his Justice Department originally proposed detaining only members of al-Qaeda or “substantial” supporters. But the case of Belkacem Besayah, a man accused of ferrying terrorists to Afghanistan, stretched that definition, setting off a heated debate.
The State Department’s top lawyer wrote in a secret memo that there was no legal case to detain Bensayah, the New York Times reports. The Pentagon’s top lawyer strongly disagreed, offering a more flexible interpretation of who can and can’t be detained. The Office of Legal Counsel couldn’t decide between the two sides, choosing instead to avoid the big questions and take a “tactical” approach, tackling each case individually. The result? Obama’s policy, in practice, looks much like Bush’s.