Obama’s New Guantanamo Executive Order: A Glass Half-Empty or Half-Full?
The Obama administration today unveiled its executive order providing additional, periodic executive-branch review of its continued detention of prisoners at Guantanamo. (The administration also released a fact-sheet placing the order in a broader context that includes its resumption of military commission prosecutions). How one views the executive order may depend on how one feels about the current state of affairs at Guantanamo and the system of indefinite detention that has come to define it.
The order sets up a new administrative procedure—the Periodic Review Board (PRB)—to review cases of individuals whom the administration’s task force previously selected for continued detention or criminal prosecution. The order disavows any claim of new detention authority. Rather, it provides an alternative avenue of release for detainees who, in the administration’s view, may be lawfully held under the 2001 Authorization for Use of Military Force (AUMF), as informed by the law of war.
The PRB is the latest installment in the alphabet soup of Guantanamo review schemes. On paper at least, it’s a significant improvement over the Combatant Status Review Tribunal (CSRT), created by the Bush administration in 2004 to rubber-stamp its determination that the detainees were “enemy combatants” and avoid the habeas corpus review the Supreme Court had just mandated in Rasul v. Bush. This time, detainees are assigned personal representatives who, well, actually represent them. (Under the CSRT, the detainees’ personal representatives could—and sometimes did—advocate against them).
The PRB also allows detainees the assistance of their counsel and appears to provide more procedural safeguards than either the CSRT or the Administrative Review Board (ARB), the additional layer of executive-branch process created by the Bush administration to periodically review detainee cases. The details of the PRB process have yet to be announced.
Obama’s order states that the PRB will not interfere with the ongoing habeas corpus litigation. The PRB thus purports to provide an additional way for detainees, including those who have lost their habeas cases, to gain release.
For detainees who the administration believes present little if any real security threat, but whose detention it has successfully defended in court—typically via some nexus to the armed conflict in Afghanistan—the order is good news in theory. What difference, if any, it will make in practice given Congress’s restrictions on transferring detainees remains to be seen, as Bobby Chesney notes here.
But if you oppose the type of prolonged, indefinite detention that has come to define Guantanamo (as I do), the order is a mixed blessing at best.
Since Obama’s National Archives speech of May 2009, it has been clear he supports some form of continued detention without charge for Guantanamo detainees. The order operationalizes and entrenches that policy.
Despite some procedural improvements over the CSRT and ARB, the order still suffers from various shortcomings, including the PRB’s leeway in denying a detainee’s personal representative and cleared counsel access to the underlying information used to justify his continued confinement. Although the order requires that a substitute or summary be provided, it is the PRB that makes the determination of whether the substitute or summary is adequate.
Moreover, as Deborah Pearlstein observes, it is unclear why a detainee whose release is denied by the PRB—and who has already spent nearly a decade imprisoned at Guantanamo—must wait an additional three years for another shot.
The biggest problem though is that PRB remains a discretionary process, firmly in the executive’s control. Unlike a judicial proceeding, the executive cannot be ordered to do anything it doesn’t want to do.
Ultimately, the order may buy the administration some good will with a base disappointed by its failure to close Guantanamo and with judges who are being asked to sign off on indefinite detention in the habeas cases. Meanwhile, the order helps cement the prolonged, potentially permanent, imprisonment of individuals who have never received the full due process protections that accompany a criminal trial.
In short, the order bears several hallmarks of Obama’s Guantanamo policy: a desire to strike a balance between liberty and security (albeit one heavily weighted towards security); a professed respect for the separation of powers (while seeking to enhance executive control at the expense of the judiciary); and a recognition that providing a better process will ultimately strengthen the government’s hand in defending its detentions in court.
Perhaps the best thing about the order is that it applies only to Guantanamo. Better an executive order to deal with the kind of sui generis problems posed by Guantanamo than new congressional legislation that exploits Guantanamo to institutionalize a much broader system of indefinite imprisonment.
Welcome to Obama’s kinder, gentler approach to executive detention.