As mcjoan noted earlier, someone, somewhere is floating the idea of an executive order to implement a system of "prolonged detention" for the Obama administration. Joan certainly covered all the bases in her approach to the story, but I do have my own angle to add.

I was particularly struck by one passage in the Washington Post/Pro Publica article:

One administration official suggested the White House was already trying to build support for an executive order. "Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said. Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.

It's not stated explicitly, but since the story goes on to cite the President's speech of May 21st just three sentences later, I don't think it's out of the question to guess that the unnamed administration official above had in mind the President's meeting of May 20th with civil liberties activists and legal scholars when he or she said that the administration was encouraged to adopt any such system through an executive order.

The only problem with that is, I don't recall anyone encouraging any such thing.

My memory of that meeting, of course, is by no means the definitive record. But given the specific focus of my own participation in that meeting, it seems rather unlikely that I would have missed anyone's suggestion that such a policy be implemented by unilateral action of the President. In fact, my comments at the meeting began with the specific warning that any new policies put in place by this administration would undoubtedly survive it, only to be abused by some succeeding administration, no matter what President Obama's intentions in implementing them. So while I see the point in arguing that an executive order can be more easily rescinded, it also seems obvious that it can be reissued just as easily. Or more likely, that a new and more draconian one can be issued in its place, with President Obama's serving as precedent. I doubt that would have escaped notice or comment.

And indeed, as mcjoan noted (via TPM), Shane Kadidal of the Center for Constitutional Rights did comment:

Another thing that's odd about this is the idea that this detention authority would somehow be more transient if it were authorized through executive order (which can be reversed at the stroke of the president's pen) rather than a statute (which could sit on the books indefinitely). If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent.

Indeed, that was another part of my focus: that tendency for unchecked executive power to congeal into precedent, for which I relied as I frequently do on Justice Frankfurter's opinion in the Youngstown steel seizure case.

Lo and behold, it is also the focus of today's "told you so" from the right:

The world sure looks different after you take that oath of office, doesn't it? How easily campaign declarations of outrage are forgotten! I bet there's not a president since Truman who hasn't learned to loathe the Supreme Court's decision in the Steel Seizure Case.

So is it just a trial balloon? I don't know. But someone certainly went out of their way to try to manufacture a justification that can lean on the supposed advice (albeit reluctant) of civil liberties groups. And the denial has its own problems:

"There is no executive order. There just isn't one."

That is, it depends on what the meaning of the word "is" is. There is no executive order. But that wasn't the story. The story was that there was a draft. Which, of course isn't an executive order. It just isn't one.

But whether there's a draft or not, I think it's worth pointing out that I'm not so sure there was any civil liberties group that encouraged the President to act by executive order, either.