Tuesday, March 08, 2011

Further Thoughts on the Guantanamo Executive Order

Deborah Pearlstein

Yesterday, I posted over at Opinio Juris some initial reactions to the Executive Order the President issued creating a new periodic review system for the detainees at Guantanamo Bay. After reading some of the other reactions circulating in the ether yesterday, I don’t think I’ve seen anything that leads me to change that account. But there are several apparent misperceptions out there I think warrant correction.

First is the notion – captured by the Washington Post’s lead article on the order – that the executive order somehow creates a new “formal system of indefinite detention” for the Guantanamo detainees. (Ditto Dafna Linzer, among others.) The order I think is about as clear as it could be that it is being issued pursuant to existing authorities, most notably the statutory Authorization for the Use of Military Force (AUMF), and is not intended to and should not be read to alter the scope of detention authority available under that statute as interpreted by the courts. Again, the key language from the order: “It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law. Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.” Why do I raise this? It’s not because I am a great proponent of the D.C. Circuit’s interpretation of the AUMF. On the contrary, that court basically ignored what guidance international law does offer and otherwise I think found a degree of detention authority under the AUMF broader than what one could plausibly (or wisely) attribute to statute. But the suggestion that yesterday’s order is supposed to broaden that already broad grant of congressional/judicial detention authority, or is somehow supposed to reset the litigation clock back to zero on what the scope of that detention authority should be – is simply not supported by the text of the order.

Second is the effort I’ve seen by some to compare the procedures for review made available under this new executive order to the procedures available under the Bush-era Combatant Status Review Tribunals (CSRTs), a predecessor review process that the Supreme Court rejected as an inadequate substitute for habeas corpus review in U.S. federal court. Such comparisons miss the point. These procedures are not meant to replace any earlier approach; they exist only in the shadow of what substantially greater review today already exists for the Guantanamo detainees through the federal courts. As yesterday’s executive order notes, these new review procedures are to exist in addition to the habeas review that the Supreme Court recognized as mandated by the Constitution and that is already available to the Guantanamo detainees. Before yesterday’s order, detainees had essentially one shot to challenge the legality of their ongoing detention through the federal habeas process. If they lost in the D.C. district court and/or at the D.C. Circuit court on appeal, they had exhausted their potential avenues for review. This gives detainees another bite at the apple. As I noted yesterday, this is hardly to say it resolves all the many problems associated with the status quo at Guantanamo Bay. But are the detainees better off today than they were before the order was issued yesterday? Hard to see how the answer isn’t at least marginally yes.

Probably most unfortunate about the reporting so far is that it obscures (in lower paragraphs at best) what has been and remains the single greatest obstacle to the closure, or even amelioration of the situation, at Guantanamo: Congress. In 2008, both presidential candidates and their parties embraced the need to move toward closing the detention facility. In 2008, efforts by Congress even to conduct hearings into detention-related matters were still met with the criticism by some that Congress was interfering in matters properly left to the executive branch. Since then, Congress has become engaged up to its eyeballs in micromanaging the executive’s handling of a handful of detainees, and is otherwise devoting its Guantanamo-related energy to preventing the President from bringing criminal charges in our own courts against men who the President and Congress believe have committed crimes. We are through the looking glass.

Going forward, what I’d be most interested to read is some investigative analysis of how it is this dramatic change occurred. And some strategic thinking about how one might go about changing it back.

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