22 Jan Obama Gives Himself One Year to Close Guantanamo, But Leaves Himself Plenty of Wiggle Room
I’m not familiar with these things, but it strikes me as a bit odd that the Obama Administration is leaking draft versions of its executive order on Guantanamo. Just release it, already! You are the President now! In any event, the draft order does take a fairly hard line on closing Gitmo, but it leaves itself plenty of wiggle room. At least we know the new prez has good lawyers.
Sec. 3. Closure of Detention Facilities at Guantánamo
. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.
Obama is pre-committing himself to closing Guantanamo by next January. But that is the only thing that is really different about this policy from Bush’s, since Bush was also sending detainees to home countries or third countries. Besides, it is not Guantanamo itself that is what people object to, but the detention of individuals without granting them rights under international or constitutional law. And nothing in this order seems to guarantee that this will change since all it says is that individuals could be transferred to “another United States detention facility.” This could mean Afghanistan, for instance. Only a pledge to transfer them to a facility in the territory of the United States would guarantee them U.S. constitutional rights. And even then, the order seems to suggest this transfer to U.S. territory would only happen if Congress gives some legislative authority to detain without trial within the U.S. The individuals at Guantanamo and in U.S. custody already enjoy Common Article 3 protections under international law, after the 2006 Hamdan decision. So the order isn’t really changing that much here. Yet.
As Columbia lawprof Matt Waxman notes here, there are no easy solutions to closing Guantanamo, especially if the Obama administration wants to continue to prosecute the war on terrorism. And even closing Gitmo will not resolve the basic problem of what to do with the most dangerous detainees. Obama is giving himself a year to figure this out.