More on Obama's Pernicious Executive Order on Indefinite Detention

Marcy Wheeler's analysis of the latest Obama Executive Order, bringing back the military commissions, and setting up an extrajudicial apparatus within the Executive Branch for review of indefinite detention cases, hits the nail on the head. She takes apart the contentions of Ken Gude at the UK Guardian that the new EO represents "a clearly articulated standard for continued detention."

Here’s the actual language of Obama’s EO:

Sec. 2. Standard for Continued Detention. Continued 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. [Emphasis added]

The grammar of the EO is a clear admission on the government’s part that it is willing to indefinitely detain a human being not for what he has done, but because of the big swirling boogeymen it believes to lurk out there.

And it’s important that those who write about this make that distinction clear.

Amen.

In addition, Gude’s claim that “A detainee must be lawfully held under the laws of war, must have had that detention upheld by a federal court in a habeas proceeding,” doesn’t jibe with my reading. The EO states that “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention....”

As I read it, the latter is a pro forma statement, because it appears the Obama administration believes it can indefinitely hold someone despite a habeas decision. Moreover, they have been quite active in appealing successful habeas petitions, and is doing so with, as Andy Worthington puts it, "a political bent."

Since last January, when President Obama announced a moratorium on releasing any Yemenis from Guantánamo — in response to the hysteria that greeted the news that Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, had been recruited in Yemen — every successful habeas petition by a Yemeni (with the exception of Mohammed Hassan Odaini, a student whose clearly mistaken detention was picked up by the mainstream media) has been appealed.

The U.S. government is seeking to eviscerate habeas (as has already been done, really) not by formally taking away habeas petitions, but ignoring or contesting their outcome, and claiming a new entity, their Periodic Review Board, will determine who is actually released, not some (cough) court.

And who is on the Periodic Review Board?

“Periodic Review Board” means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.

This puts the national IC community and military in charge of indefinite detention review. DOJ and State are mere rumps, at this point, of a militarist state seeking to put in place new institutions that will better represent their interests and rule.

Human Rights Watch, alone among human rights groups, while condemning the resumption of the military commissions, calls the latest position on indefinite detention "authorized but restricted," noting it "provides an additional layer of review not previously available."

While these new provisions are an improvement over the current system, which does not have such a review, the use by the US of indefinite detention without trial still fails to meet the most basic elements of due process under international law, Human Rights Watch said. Importantly however, the order only applies to detainees currently held at Guantanamo and not to anyone who might be captured in the future, a significant limitation given calls for sweeping detention authority by critics of the administration.

"Is added review an improvement? Yes. Does it make US detention policies lawful? No,"

said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "Signing an executive order does not suddenly make it legal to lock people up and hold them forever without proving they have committed a crime."

It's strange, this search for something positive to say by HRW, as if the EO represented any kind of moral victory by providing a "significant limitation" of its abrogration of rights, and usurpation by the executive branch of unchecked review. It's quite clear that Obama is setting up a new version of the Combatant Status Review Boards set up during the Bush years, with bogus oversight by high defense department and intelligence officials, with fig leaf cover by State and DoJ.

Sabin Willett, an attorney at Bingham McCutchen in Boston, representing the Chinese Uighurs at Guantanamo since 2005, had an apt question for the leaders of this country, or perhaps really for those unconvinced the U.S. government is out of control here (H/T powwow at Emptywheel/FDL).

The thing I’ve never understood is, why at least not convert GTMO to a POW camp? A real one? With real, honorable treatment of the enemy, as required by law and the service field manuals? Why the cages, interrogations, etc etc etc? Why aren’t there gardens, orchestras, newsletters, canteens, jobs — or were the Nazis (who had all those things in camps in Texas and Alabama) less dangerous than Taliban privates?

America is Winston Smith. You remember how Orwell’s 1984 ends.

Powwow adds:

It is all the more important that the Supreme Court act to rein in the D.C. Circuit, because evidently no branch of our federal government is the least bit inclined to forcibly remind the President that he too has “a solemn duty to follow” the law of war in wartime, including “competent tribunal” review of the default POW status of any (actual belligerent) wartime detainees captured or held by the United States military during a Congressionally-authorized armed conflict.

For aspects of the latest EO has they pertain to issues of indefinite detention at Bagram and elsewhere in Afghanistan, see also this article by Marcy Wheeler.