Center for American Progress

RELEASE: Re-engaging on Guantanamo: Obama Administration Releases Executive Order Outlining Changes to Detention Policy
Press Release

RELEASE: Re-engaging on Guantanamo: Obama Administration Releases Executive Order Outlining Changes to Detention Policy

By Ken Gude | March 8, 2011

Read the full column here.

WASHINGTON, D.C. – Today, the Center for American Progress released a column by Ken Gude, Managing Director of the National Security and International Policy Program, entitled “Re-engaging on Guantanamo,” discussing the meaning of the executive order on Guantanamo detention that the Obama administration released today.

Ken Gude outlines what the executive order does and does not do, while maintaining that it is a meaningful improvement on the current situation and an important statement by the administration. It does not establish any new source of detention authority nor apply to any detainees not currently held at Guantanamo. Only Guantanamo detainees referred for prosecution or for continued law of war detention are subject to the terms of the executive order. 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.

The executive order does provide 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 now the representative will be an advocate on behalf of the detainee and tasked with challenging the government’s presentation. Detainees will be able 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,” and 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. 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. 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.

Read the full column here.

Ken Gude is the Managing Director of the National Security and International Policy Program at American Progress.

To speak to Ken Gude, please contact Christina DiPasquale at 202-481-8181 or [email protected].