Obama Gives Himself One Year to Close Guantanamo, But Leaves Himself Plenty of Wiggle Room

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.

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Didn’t the courts already deal with granting prisoners constitutional rights?… In Obama’s draft executive order, there is this clause: “(c)  The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus.  Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.” This is already our law. Obama can change the way that the military tribunals are run to make them not a “farce,” but no one now doubts that those prisoners are entitled to rights. And then there is this: “Sec. 6.  Humane Standards of Confinement.  No individual currently detained at Guantánamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions.  The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with this directive.  Such review shall be completed within 30… Read more »

Howard Gilbert
Howard Gilbert

During WWII 435,000 Axis POWs were held in camps around the US without acquiring “US constitutional rights”. If in re Territo establishes that a US Citizen among the POWs has no special rights, then enemy aliens cannot expect more. In the Civil War, all the camps were on US soil and all the POWs were US citizens, and no court interfered. Entry into the US in military custody does not confer the rights you would receive if you entered legally at a port. Furthermore, what most people refer to as constitutional rights apply to criminal charges. If someone is held under the laws of war and not as a criminal, then any subsequent habeas or other judicial process is civil and does not trigger Miranda warnings, the confrontation clause, and other criminal procedure protections. In the al Marri decision, the Fourth Circuit found no fault with the structure of the District Court hearing that found the prisioner to be an enemy combatant, but remanded for a new hearing with different rules of evidence. So moving people from Guantanamo to anyplace in the Fourth Circuit does not necessarily change their status. If you disagree, expect at least two years of litigation up to the Supreme Court before the… Read more »

Charles Gittings


Once again, civilians who are accused of crimes are NOT POWs. The war on terror is no more a war than the war on drugs or the war on poverty, and it’s time to quit pretending otherwise.


Charles –

Cannot a POW be charged and tried for crimes committed while in a combatant status? 

For example, if a soldier in uniform, during armed conflict, kills another soldier who has surrendered, could that soldier, upon capture, be treated as a POW and yet charged and tried for the murder of a noncombatant?

Andreas Paulus

I must confess that your remarks do not quite seem to grasp the importance of this day. Of course it will be difficult to clean up the mess that Guantanamo is – legally and morally. But here we have an honest attempt by a new administration to set the record straight – to end the flirtation with “torture lite” (and not so lite), to provide rights even to alleged enemies, to finally provide the detained trials worthy that name in the Western world. I have the greatest possible respect for these bold moves. This administration intends to uphold the rule of law, and as lawyers we should applaud it and not expect all solutions at once, or question the sincerity of its intentions before we have evidence to the contrary.
Andreas (Paulus, Goettingen, Germany)

Michael J. Davis

I’m just glad that its being closed at all.
Why can’t we just transfer Guantanamo Detainees to Federal Prisons?

Charles Gittings


That is correct — there is no combatant immunity for war crimes.

But that’s not the issue here. Most of these folks are not not soldiers, and those who were actually captured in Afghanistan while fighting as soldiers for the Taliban have never been treated as POWs. This is about unreviewable executive fiats, indefinite detention without trial, guilt-by-association, coerced confessions, and kangaroo courts pretending to be “military commissions”.

Marko Milanovic
Marko Milanovic

The executive orders on the closure of Guantanamo, review of detention policies and ensuring lawful interrogations that were signed by President Obama today are now available here.

Particularly the last EO is of interest – it inter alia repudiates all OLC legal interpretations of interrogation standards since 9/11, applies the Army Field Manual standards to the CIA, and mandates ICRC access to all terrorism detainees in US custody.

Howard Gilbert
Howard Gilbert

Charles: The question of who does or doesn’t obtain rights under the Constitution has to come from the Constitution, its amendments, and the common law in place at the time it was adopted. Article 4 of GC III in 1949 cannot affect Constitutional rights, only the rights and protections provided by the GC itself. Of course the GC and subsequent legislation can provide statutory rights, and those rights might be written to be equivalent in form to Constitutional protections. So I see no basis for the claim that “a pledge to transfer them to a facility in the territory of the United States would guarantee them U.S. constitutional rights.” The mistake of the Bush administration to refuse to grant GC III and IV protection to detainees captured in or near Afghanistan does not prevent the current administration from granting these protections. A decision to grant POW protection does not remove any other protection that the detainees enjoy. If a WWII POW did not have rights, it could not have been because his status matched an article in a treaty that would not exist for six years, but rather because his status matched prisoners taken during the Revolutionary War and other conflicts before the Constitution was… Read more »

Benjamin Davis
Benjamin Davis

I guess my sadness was that from the picture at the signing ceremony there were only a bunch of white guys behind Obama.  Like this is not a thing that concerns Americans of both genders, all races, etc.

Charles Gittings

Hey Julian —

Let’s see you spin up some “wiggle room” in this one:

“Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States
Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation — including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 issued by the Department of Justice between September 11, 2001, and January 20, 2009.”

Executive Order — Ensuring Lawful Interrogations (2009.01.22), sec. 3(c).



Obama is smart on so many levels for ordering the closure of Guantanamo.  It has been a long time coming

Michael Kochin

to Charles Gittings:

” unless the Attorney General with appropriate consultation provides further guidance” provides enough wiggle room to drive a truck through, especially since the AG’s guidance could easily be kept classified.