White House Drafts Executive Order for Indefinite Detention

According to Pro Publica, the White House is preparing an Executive Order on indefinite detention that will provide periodic reviews of evidence against dozens of prisoners held at Guantanamo Bay who have been designed. The draft order, a version of which was first considered nearly 18 months ago, is expected to be signed by President Obama early in the New Year. The order allows for the possibility that detainees from countries like Yemen might be released if circumstances there change.
According to the NY Times:

The Obama proposal, by contrast, would establish a “periodic review board” drawn from many agencies, not just the military, and modeled on a parole board, one official said. Detainees would be represented by lawyers and would have greater access to some of the evidence against them.

Among the details yet to be determined are how often each detainee’s files would be reviewed, and how often he would receive a full-blown hearing.

The Bush administration set up its annual review board system during its unsuccessful fight to prevent the Supreme Court from granting the detainees a right to have their cases reviewed by federal judges, who could ultimately order their release if the evidence against them was weak.

The Obama administration’s proposal, by contrast, would supplement such habeas corpus hearings in court. While judges would determine whether it was lawful to hold someone as a wartime detainee — because he is part of Al Qaeda or the Taliban — the review boards would determine whether it was necessary to do so, one official explained.

After taking office, the Obama administration reviewed the detainee population at Guantanamo Bay and chose 48 prisoners for indefinite detention. Officials, who spoke on the condition of anonymity, said that number will likely increase in coming months as some detainees are moved from a transfer category to a continued detention category.
In the Washington Post one official commented:
“I would argue that you still have to go ahead because you can’t simply have people confined to a life sentence without any review and then fight another day with Congress,” the administration official said. “One of things we’re mindful of is [that] you can’t have a review conducted by the same people, in the same process, who made the original decision to detain. You have to have something that is different and is more adversarial, which the Bush administration never had.

Some civil liberties groups oppose any form of indefinite detention, even with a built-in mechanism to challenge incarceration.

“Indefinite detention without charge or trial is wrong, whether it comes from Congress or the president’s pen,” said Laura W. Murphy, director of the American Civil Liberties Union’s Washington legislative office. “Our Constitution requires that we charge and prosecute people who are accused of crimes. You cannot sell an indefinite detention scheme by attaching a few due-process baubles and expect that to restore the rule of law. That is bad for America and is not the form of justice we want other nations to emulate.”

The executive order, however, could be an effort to preempt legislation supported by some Republicans, which would create a system of indefinite detention not only for some Guantanamo detainees but also for future terrorism suspects seized overseas.

Malinowski said there is a “big difference” between using an executive order, which can be rescinded, to handle a select group of detainees that Obama inherited, and legislating a general indefinite detention scheme.

Benjamin Wittes comments by saying:

The idea of creating a robust, adversarial review mechanism to review detentions before an impartial decision-maker is long overdue–overdue in this administration and overdue in the last. If detention is going to be a feature of our counterterrorism stragey in the future–and it is–it has to be legitimate. And while the left has staked its all on habeas, habeas is actually a highly imperfect instrument for the job of creating long-term legitimacy. The one-bite-at-the-apple nature of it means that it can be very insensitive to changed circumstances. Having a system of regular review that can examine a wide range of factors beyond the simple lawfulness of a detention makes all the sense in the world. So done right, this could be a big step forward in creating a fair system for detainees and thus also in creating legitimacy for detentions that aren’t going to end any time soon.

All that said, I cannot bring myself to feel easy about bringing such a system about by executive order. This system belongs in statute. It belongs in statute both because Congress should have to stand behind it and because in the long run, a detention system based on an aging AUMF and an executive order is not going to fare as well in court as one based on a clear, explicit, and comprehensive act of Congress. While the left will, as Bobby rightly points out, complain about the “institutionalization” of detention, the real problem is the opposite: An executive order does not do enough to institutionalize the detention in which we are going to be engaged for decades to come. This is a matter that warrants careful institution building by the Congress of the United States–which is to say a move away from unilateral executive action. Ironically, despite the left’s having spent years criticizing such unilateral actions by the Bush administration, human rights and civil liberties groups seem to prefer that Obama get in touch with his inner Dick Cheney than that he do detention properly. I don’t. And I worry that a good policy effectuated by the wrong means will come back and bite us–maybe not immediately, but soon and very painfully.

Jack Goldsmith comments as well:
The proposed EO does not address the problem of what I call extra-AUMF threats.  On Sunday Attorney General Holder warned about home-grown terrorist threats not tied to al Qaeda.  (Holder is wrong to suggest that this is a new problem; Attorney General Gonzales warned in 2006 speech (no link) that “the threat of homegrown terrorist cells . . . may be as dangerous as groups like Al Qaeda, if not more so.”)  This is the latest of many recent administration warnings about how terrorist threats independent of al Qaeda – from inside and outside the United States – are growing.  As I have said before, one wonders what authorities the administration is using to meet these growing threats, and whether it will have adequate authorities to detain and interrogate these terrorists properly if captured.  In this regard, the EO – as both Ben and Bobby note – does not address the most serious problem going forward.  It is, rather, a small step in dealing with an old problem.

4 Responses

  1. WSJ editorial: Obama’s Detainee Mess http://ht.ly/3v38H

    White House aides say they are working up an executive order to allow the U.S. to hold enemy combatants indefinitely, while last week a Democratic Congress barred the Pentagon from spending money to transfer detainees held at Guantanamo Bay to the U.S. mainland. Did we just wake up and discover this is 2003 and George W. Bush is still President?

    The leaked plans to allow indefinite detention are also a concession to political and wartime reality. Remember all that huffing and puffing about Mr. Bush’s “illegality” and the alleged affront to American values from holding enemy combatants without a trial? Mr. Obama has discovered the difficult dilemmas involved in handling captured killers who refuse to obey the rules of war, much less of civilized society. We’re now waiting for House Judiciary Chairman John Conyers to call for Mr. Obama’s impeachment.

    One reason Mr. Obama has been forced to allow indefinite detention is because he seems unwilling to allow more military commission trials at Guantanamo. We’re told that Pentagon general counsel Jeh Johnson has told both the convener of the military tribunals and their chief prosecutor that they should expect to hold no more such trials. A Pentagon spokesman says that isn’t true and that Mr. Johnson is working with the White House to allow them to continue. But there’s no dispute that the Administration hasn’t convened a tribunal case since Omar Khadr earlier this year, and the liberal wing of the Democratic Party hates this concession to Mr. Bush’s antiterror policy.

    Yet if civilian trials can’t proceed on U.S. soil, and without military tribunals, the only alternatives are indefinite detention or letting the killers go. The recent WikiLeaks memos reveal the lengths that the Obama Administration has gone to cajole, bribe or coerce countries into accepting Gitmo’s remaining detainees. But no country wants to take the worst of the killers, especially since of the roughly 600 released from Gitmo about 150 have returned to jihad, according to U.S. intelligence estimates. That’s a recidivism rate of 25%.

    That leaves indefinite detention, and the remarkable irony that Mr. Obama and such legal advisers as the State Department’s Harold Koh are left to implement the preferred policy of much-maligned Bush legal adviser John Yoo.

    For our part, we’d rather see military tribunals than indefinite detention. While the Supreme Court has declared such detention to be legal and it is necessary in some cases, the white shoe anti-Gitmo bar will continue to press cases to stop it as the war on terror continues. We’re not sure this policy is sustainable as the conflict enters its second decade and could go on for several more.

    Refusing to try the likes of KSM and other terrorists also denies the families of 9/11 victims the sense of justice done. Terrorists who kill innocents deserve to be convicted and punished appropriately, which in many cases should mean the death penalty. It is an insult to the American people to see the killers of civilians able to avoid a judgment on their guilt. Nazis Hermann Goering and Adolf Eichmann were sentenced to hang for their crimes, but KSM and Ramzi bin al Shibh get three squares a day and the hope that someday they might be released.

    The Obama policy against military tribunals also devalues a legal wartime paradigm developed over centuries. This paradigm distinguishes between lawful combatants who wear a national uniform and obey the rules of war and unlawful combatants who do not. Without military justice, terrorists will know that, unless they are killed on the battlefield, the worst that can befall them is detention. We will have degraded the punishment for engaging in barbaric behavior against all civilized norms.

    The President’s political mess over detainees is his own creation. To win the Democratic nomination, Mr. Obama sided with the anti-antiterror left against Bush policies, only to discover the world is more dangerous and complicated than he imagined. If Mr. Obama won’t admit this, then Republicans in Congress should investigate the Administration’s failed detainee strategy and its reluctance to put terrorists on military trial.

  2. NYTtimes: a step towards fairness

    http://www.nytimes.com/2010/12/28/opinion/28tue1.html

    This country continues to pay a high price in both security and reputation for the Bush administration’s many violations of international law at Guantánamo Bay, Cuba. After more than a year of review, the Obama administration is preparing an executive order intended to resolve the situation of four dozen prisoners in the prison there who are caught in a legal limbo: they cannot be freed because they are considered a potentially serious terrorist threat, and they cannot be tried because the evidence against them is classified or was improperly obtained, often through torture.

    The proposed order could give these prisoners a form of legal representation and a system to review their cases. It would not remove the tarnish to the American justice system of holding prisoners without trial. But it could represent a significant step forward in dealing with these cases and possibly reducing their number.

    The order, which could be signed by the president as early as next month, would require periodic review of each prisoner’s case by a kind of parole board drawn from agencies throughout the executive branch and not just the military.

    This board would regularly assess whether a prisoner still represented a danger to public safety or was safe enough to release. The prisoners would have access to an outside lawyer, if they requested one, and would also be allowed an advocate within the system — a change from the Bush administration’s policy of allowing them only a “personal representative,” who was unable to help them make the case for release.

    President Obama’s plan to close Guantánamo — thwarted by Congress — had always recognized that there would be a small core of prisoners who could not be tried because of the nature of the evidence against them or the illegal way that evidence was obtained. (Others could be tried by a civilian or military court, or sent to another country or simply released.) These endless detentions clashed with the most basic legal protections of the Constitution. But judges have upheld them because of the public-safety issues involved.

    The Obama administration deserves credit for trying to come up with a realistic legal process for these 48 prisoners, particularly after the Bush White House seemed content to hold them indefinitely with only a thin whitewash of due process. President Obama has rightly barred coercive interrogations and other forms of torture for new prisoners, and the administration needs to ensure that any future detainees are held only on admissible evidence.

    Unfortunately, Congress seems determined to stymie every effort to close Guantánamo and begin dealing with its remaining prisoners in court. Last week, Congress passed a defense authorization bill that prohibits spending money to transfer a prisoner from Cuba to the United States, or to buy any prison facility in the United States that might hold the 48 in-limbo detainees.

    To continue with military operations, the president will probably have to swallow his objections and sign the bill. Over the next year, he must work harder to persuade Congress not to interfere with the work of bringing fairness to the justice system at Guantánamo. As Mr. Obama rightly argued when discussing the detentions last week, “We have these core ideals that we observe — even when it’s hard.”

  3. Washington Post:
    http://www.washingtonpost.com/wp-dyn/content/article/2010/12/25/AR2010122501785.html

    Where Mr. Obama’s order on terrorism detentions falls short

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    Saturday, December 25, 2010; 6:08 PM

    ALL DETAINEES at the U.S. Naval Base in Guantanamo Bay, Cuba, have the right to challenge their detentions in a U.S. court, thanks to a 2008 Supreme Court ruling. But no legal framework exists to challenge prolonged detentions after a federal court has weighed in once, leading to the possibility that a suspect could be handed a de facto life sentence without benefit of trial or further review.

    The Post’s Peter Finn and Anne E. Kornblut report that the Obama administration is preparing an executive order that would create intra-agency boards periodically to reassess the validity of prolonged detentions. Detainees would have the right to bring challenges and be entitled to representation. They would also be allowed access to some of the information against them.

    The proposal is laudable for introducing a measure of fairness into the process, but it is shortsighted because it would apply only to the 48 detainees at Guantanamo who the administration says are too dangerous to release but who cannot be tried in a federal court or military commission. What about the next 48?

    The proposal makes no provision for the likely capture of future suspects who may fit the same description. Removing lawful detention as an option could lock the administration into untenable and potentially dangerous situations.

    Take, for example, the prospect of U.S. raids into Waziristan to capture al-Qaeda and Taliban fighters, which the New York Times reports are being contemplated. Would captives be detained – wrongly, in our opinion – under the Geneva Conventions as prisoners of war, even though they were captured outside of a recognized war zone? Federal prosecutions are out of the question now that Congress has forbidden the transfer of detainees into the United States; what if military commissions were also off limits because of a lack of admissible evidence? Would the administration simply let the captives go, even though intelligence reports indicate that they pose a threat? Or would it take the path roundly and rightly criticized by civil libertarians and hold these new detainees beyond the rule of law?

    The administration is concerned that a detention measure embedded into law could be wrongly used for offenses having no connection to terrorism. It worries that political opponents on Capitol Hill could insert odious provisions that the administration would be powerless to block. These are not trivial concerns, but they should be addressed by narrowly tailoring the law and displaying the level of leadership demanded in such matters. The administration should propose legislation, and its bill should cover future detainees as well as current inmates.

  4. The Guantanamo 48
    LA Times editorial

    Detaining these prisoners indefinitely and without trial goes against American notions of due process.

    The Obama administration made it clear long ago that it intended to detain 48 Guantanamo inmates indefinitely and without trial. We have been critical of that policy both because the right to a trial is central to American notions of due process and because the administration’s criteria for indefinite detention are too broad. These are detainees the government considers too dangerous to be released, but who can’t be tried because the evidence against them either wasn’t preserved, was tainted by torture or doesn’t link them to particular terrorist plots.

    Now it’s reported that the administration is preparing an executive order that will provide for regular review of whether these detainees should continue to be held. So-called periodic review boards would be composed of military and civilian members, and inmates would have the right to be represented by counsel.

    This arrangement is an improvement over a system established by the George W. Bush administration, in which a panel of military officials evaluated requests for release and inmates had no legal representation. But it falls short of affording inmates the protections they would enjoy in a trial (even in a military commission).

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    As we have observed before, detention without trial should be an absolute last resort and must be overseen by the courts. It was a step forward when the Supreme Court in 2008 ruled that Guantanamo inmates had a constitutional right to file petitions for habeas corpus. But the court didn’t provide lower court judges with much guidance about how they should evaluate claims by those prisoners.

    A better approach would be the creation of a special court to determine whether a prisoner at Guantanamo continued to pose a danger to this country. It’s probably unrealistic to expect a Congress that has thwarted Obama’s plans to close Guantanamo to create such a court. That places the burden on the administration to make the periodic review boards as much like a court as possible — perhaps by recruiting retired judges to serve on them.

    The new review boards also should adopt stringent standards for deciding whether an individual will remain in detention. The criteria developed by an administration task force included “a history of association with extremist activity” or “strong ties (either directly or through family members) to extremist organizations.” The standard should be past involvement in violence and terrorism.

    Even with those refinements, the idea of holding prisoners without trial is a disturbing departure from American notions of justice. But President Obama is adamant that he is “not going to release individuals who endanger the American people.” He should take pains to ensure that decisions about dangerousness are credible.

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