Some preliminary thoughts on the Gitmo Executive Order

by Deborah Pearlstein

Having just read through the new order quickly, a few thoughts. First, as had been long rumored, the order essentially sets up a periodic review system for the Guantanamo detainees. The review system is discretionary in nature, but appears designed to supplement the already existing and fairly robust review available to Gitmo detainees through the federal courts since 2008 (thanks to the Supreme Court). In this respect, the order should be seen as a positive development. Especially given that not all of those seeking habeas review win their cases, I certainly don’t see how it can hurt to have an additional layer of periodic review to ensure that the circumstances that made detention appropriate in the first place (the existence of a particular armed conflict, for example) continue to hold.

Indeed, such a system of review seems directly contemplated by the Geneva Conventions (at least as they apply to more traditional situations of occupation and international armed conflict) when it comes those a state thinks necessary to detain for “imperative reasons of security,” as the Fourth Convention puts it. (This is not to suggest I think that convention or its Art. 78 directly applies here in any way; I note it only to show that systems of periodic review are generally favored by the Conventions in circumstances of armed conflict. Again, on very quick scan, the order reads to me as though it is trying to extend this IHL-by-analogy idea in explaining, for what it says are discretionary purposes (not to change or impact how the district courts have already resolved this question) that in the President’s view “[c]ontinued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.” More on the utility of this standard for these limited purposes below.) For an administration interested in attending at all to the international law of armed conflict, and in the face of a Congress that has proven itself repeatedly loopy when it comes to all things Gitmo (most recently with the deeply ill-conceived use-of-funds ban on detainee transfers even for criminal prosecution), this seems like a fine step.

As for the quality/nature of the review process itself, much will have to wait for guidelines the order requires the Secretary of Defense to issue, but the parameters set forth in the order seem sensible as far as they go (and again, on very quick survey). There’s notice and an opportunity to be heard, and, I take it, to be assisted by both a government-appointed representative and an outside/private counsel. And the order appears to establish a separate process to keep tabs on what progress the government is making on transferring detainees who are found (by this process or otherwise) eligible for transfer. One red flag – as I read it, after the initial review, although files are reviewed annually, the detainee doesn’t get this kind of full review again for another 3 years. Why wait so long? The answer no doubt relates to a fuller understanding than what is reflected in this document of why/under what circumstances the President thinks these detainees will ever be entitled to release. More on that below, too, but for now I’d say the answer (to why/what circumstances) remains unclear.

Second, and probably more important, the new executive order is limited to the handling of the ongoing detentions at Guantanamo. (Per the text, “The periodic review described in section 3 of this order applies only to those detainees held at Guantánamo on the date of this order…. It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law.”) In this respect, I read it to reject efforts by some to make more permanent the detention regime Guantanamo currently models. This is a good thing. And it seems consistent with the Administration’s moves on detention policy elsewhere. Worldwide, the Obama Administration appears to have been working actively to get out of the “wartime” detention business, and wisely so. Having held tens of thousands of detainees since the attacks of 2001, the U.S. is now out of the detention business in Iraq, well on its way to getting out of the detention business in Afghanistan, and (according to the administration) entirely out of the secret-CIA-facility-detention business for good. The uniquely backwards Guantanamo regime – and a substantial reason why there is ongoing detention at Guantanamo at all – emerged patchwork and as a lesser-of-multiple-other-evils response to the foolishness of the Bush Administration on detention policy, a policy that needlessly ignored international law (among other legal strictures) over a period of years.

These days, the working theory behind Gitmo – now blessed in somewhat different form by two administrations, endorsed by the D.C. federal appeals court, tolerated by Congress, and by its terms untouched by this order – is that the statutory Authorization for Use of Military Force passed in 2001 includes authority for the President to detain certain individuals (a category defined with modest and fuzzy reference to international law) for the duration of an armed conflict (within the meaning of international law) between the United States and Al Qaeda. Not an implausible basis of authority in principle. But in reality, the AUMF is vague, and international law informs the statutory meaning in incomplete ways at best. To the extent that international law does offer guidance – for example, on the question of whether the chronic, global threat of hostilities (and occasional actual hostilities) between a terrorist organization and much of the rest of the world counts should really count as an “armed conflict” within the contemplation of the Geneva Conventions – I’ve argued that its guidance should lead us to avoid such broad definitions. Armed conflict in international law terms was meant to describe an exceptional state of affairs; a defined, and definable, moment in time during which ordinary law does not apply. In an age in which the threat and reality of transnational terrorism has been and seems foreseeably likely to remain a condition of human existence indefinitely, the U.S. v. Al Qaeda armed conflict on which the Gitmo regime depends, while arguably better than the “war on terrorism” the last administration asserted, is indistinguishable from the world’s ordinary state of being. It is the exception that swallows the rule. For these reasons, among others, I’m glad to see the executive order read in ways that seem to limit the necessary damage that ameliorating the situation at Guantanamo does.

All that said, the order seems to leave open some critical questions. The prospect of periodic review of detention implies that there are circumstances that do not exist now but that might arise in the future in which a prisoner currently deemed detainable becomes eligible for release. What are these circumstances and how, exactly, may a detainee go about demonstrating they exist? In some respects, the order does specify what particular eventualities it has in mind. The transfer review process, for instance, is designed to monitor the cases of those who are currently “conditionally detained,” i.e. detained pending a finding improved security circumstances Yemen (unclear assessed according to what metric and by whom); or detained pending only the identification of a suitable rehabilitation program or other third-country transfer option. For those individuals, the circumstances that would necessitate their release seem at least marginally clear. But beyond the detainees who find themselves in one of those categories, what does it mean that continued detention is available where “necessary to protect against a significant threat to the security of the United States?” Must there be a finding of an end to the armed conflict US v. Al Qaeda? May more individualized findings also be dispositive? May a detainee once deemed a security threat show by his words, conduct, or psychiatric profile that he no longer poses such a threat? I pose the questions not only because any detailed periodic review regime must be prepared with answers to them, but also because in practice I’ve often found that friends and colleagues who favor “preventive” detention with periodic review in principle become flummoxed and mute when asked to describe how/when such periodic review leads to release. Because it seems difficult to imagine that an individual President will ever enjoy a political environment in which releasing Gitmo detainees is easy or uncontroversial, it seems particularly important for any periodic review system that exists to be thoughtful, specific and to the extent possible binding about the process by which it might ever lead to release. Without such identified circumstances, it becomes not so much a useful additional layer of review, but a process that adds more to the appearance than the reality of legal legitimacy.

This order goes farther in answering such questions than any U.S. law, legal brief, or set of guidelines I’ve yet seen in the public realm – and that is a strength. But I don’t believe it can be understood as definitively answering the remaining questions about what we are doing at Guantanamo Bay.

2 Responses

  1. “Permanent war” and the permanent state of exception.

    And if the detention of someone is being done because of the manner in which he was treated – where are the meaningful mechanisms for that?  Sigh.


  2. Response…
    Rcall that Hamdi stated (quoting me in part and others) that it is a clearly extablished principle of the law of war that detention may last no longer than active hostilities; and then that “[a]ctive combat operations against Taliban fighters apparently are ongoing in Afghanistan” and that “[t]he United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who ‘engaged in an armed conflict against the United States’ … [i]f the record establishes that United States troops are still involved in active combat in Afghanistan.”  It seems that the focus then was on an international armed conflict, indeed, war and active “combat” and “hostilities.”
    Hamdi also addressed the AUMF, but we know that its language is backward-looking (phrase in the past tense re: 9/11 and related matters).  Of course, the AUMF authorized only “appropriate” force.
    The shift from war against terror to war against al Qaeda does not “do the trick” if, under international law, the U.S. cannot be at war or in an amred conflict with al Qaeda as such (as opposed to a war against the Taliban in Afghanistan during which some al Qaeda persons were captured and detained).  Does al Qaeda have the semblance of a government, exercise control over part of the territory of a state, or carry out sustained and concerted military operations?  It seems obvious that al Qaeda does not.  If so, the minimal threshold for an armed conflict not of an international character referenced in Article 1(1) of Geneve Protocol II cannot be met, nor similar traditional criteria for the existence of an “insurgency,”  That is why many textwriters state that the U.S. cannot be at “war” or in an “armed conflict” with al Qaeda as such (although al Qaeda attacks can trigger the right of self-dfense under UN art. 51).

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