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.
“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.
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.
Filed under: Detention