The executive order on Guantanamo detention that the Obama administration released yesterday is a meaningful improvement on the current situation and an important statement by the administration that it intends to regain the initiative on detention policy. A hostile Congress, playing on fear rather than trying to make good policy, was dominating the political debate on the future of the Guantanamo Bay detention center. The Obama administration was stuck in a deep hole and is now trying to force its way back into this debate. This order is the first step.
First, it’s critical to recognize what this executive order does not do. It does not establish any new source of detention authority nor apply to any detainees not currently held at Guantanamo. It doesn’t even apply to all Guantanamo detainees. Only those referred for prosecution or for continued law of war detention are subject to its terms. All detainees remain free to challenge the legality of their detention in U.S. federal court through the habeas corpus process. Ultimately, the only detainees that will be subject to the order will be those who lose their habeas cases.
Now to what the order does do. It provides significant improvements to the process for reviewing the detention status of detainees awaiting prosecution or those held in accordance with the laws of war. Each detainee will receive an initial review before the Periodic Review Board, or PRB. If the PRB determines that the detainee should continue to be held he will have a full review every three years, and the government and the detainee will make a written submission every six months that can lead to another full review.
The detainees will have a government representative as before. Except this time the representative is an advocate on behalf of the detainee and tasked with challenging the government’s presentation. And detainees can use their own private counsel as long as they have the necessary security clearances. Under the Bush system the representative was simply there to explain the process to the detainee, who had to act as his own advocate. And of course, no lawyers were allowed under the Bush administration.
The standard for continued detention is clearly articulated: “necessary to protect against a significant threat to the security of the United States.” That may sound vague, but having one defined standard is a huge improvement on the previous system in which the standard varied from detainee to detainee and no one knew what it was. Gone is the so-called intelligence justification for detention. A detainee must be lawfully held under the laws of war, have had that detention upheld by a federal court in a habeas proceeding, and considered a “significant threat to the security of the United States” to be ordered held by the PRB.
What’s more, the PRB is specifically ordered to consider the reliability of all information it receives. The Bush process presumed that the government’s information was reliable and accurate even in the bizarre circumstances when the information came from notoriously unreliable “enhanced interrogations.”
Taken together, these changes establish a genuine adversarial process that the American people can be confident will produce as accurate results as possible—for release or detention—to determine the status of the remaining Guantanamo detainees. This type of review is not a substitute for a criminal trial in federal court. But it is neither intended to be one, nor is it necessary that every Guantanamo detainee either be charged in criminal court or released. The 2001 Authorization to Use Military Force clearly allows the detention of individuals seized fighting the United States in a combat zone or fleeing from it. The Supreme Court specifically approved this type of detention in its 2004 decision Hamdi vs. Rumsfeld.
The additional announcement that military commissions prosecutions are set to resume marks further progress on resolving some of the Guantanamo cases. Military commissions remain a flawed trial forum despite some improvements the Obama administration initiated and Congress approved. But military commissions prosecutions are at least some movement with Congress blocking all other avenues for resolving Guantanamo detainee cases.
Hopefully these actions will inspire the Obama administration to fight for a reversal of the congressional ban on the most effective means of resolving Guantanamo detainee cases: trial in U.S. federal court.
The American peoples’ justifiable concerns about terrorism were manipulated into outright paranoia at the prospect of prosecuting Guantanamo detainees in criminal courts and incarcerating them in U.S. maximum security prisons. Guantanamo detainees are not superhuman villains. Our courtrooms and prisons are perfectly capable of safely handling their prosecution and detention despite what some politicians seem oddly eager to claim America is unable to do.
The American people deserve a better detention policy than Guantanamo. They deserve a better debate about detention policy than one dominated by fear and buck-passing. This executive order signals the Obama administration’s small re-entry into the debate. Let’s hope it’s just a start.
Ken Gude is the Managing Director of the National Security and International Policy Program at American Progress.
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