Thursday, January 22, 2009

Closing Guantanamo Bay Detention Facility and Prohibiting Torture: The Executive Orders

Law blogs are buzzing over three executive orders that President Obama issued Thursday. The executive orders provide that: (1) an interagency task force must create a plan to close down the Guantanamo Bay detention facility within one year; (2) an interagency task force must develop procedures for detaining "individuals captured or apprehended in connection with armed conflicts and counterterrorism operations"; and (3) all U.S. personnel, including agents with the CIA, must use interrogation standards that comply with the Army Field Manual and the Geneva Conventions.

Interrogation Methods
I am most excited about the order that requires interrogators, including those with the CIA, to comply with the Geneva Conventions and the Army Field Manual, both of which ban the use of torture, including "waterboarding." The approval of torture (which is inhumane and illegal) by the Bush administration was one of its darkest moments. This order, along with the Detainee Treatment Act of 2005, the Geneva Conventions, and the Army Field Manual, establishes a blanket prohibition of torture. The order also requires the CIA to shut down any detention facilities it operates.

Closing Guantanamo Bay
The Guantanamo Bay order is probably the most complicated of all. The order requires that an interagency task force must produce a plan to close the detention facility and that closure must occur within one year. The task force must submit the plan within six months.

So, as many commentators predicted, Obama has moved quickly to "close" the Guantanamo Bay detention facility, but it will remain open for the near future. Also, the order only affects the detention facility, not the military base; nor does it affect other U.S.-controlled detention facilities. The order, however, halts the trial of individuals before military commissions.

What To Do With Detainees?
The order lists several possible paths for individuals who remain detained at Guantanamo Bay when the date of closure arrives. The executive order provides that those persons "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." This language permits the government to place detainees in other military facilities, which probably would not satisfy some civil libertarians who seek either release or detention in federal prisons.

Potential "Loophole": Military Trials Remain an Option
Also, the order does not rule out the possibility of prosecuting detainees in military commissions, rather than in federal courts. Here is the relevant language:

In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution. . . .
The Center for Constitutional Rights has issued a statement which asserts that anything other than a trial in a federal court would "discredit all of the new administration’s efforts in the eyes of the world." While I do not accept this contention (at least not yet), Obama would definitely contradict a campaign promise if he does not utilize federal courts to prosecute suspected terrorists.

No Enforceable Rights
Finally, the executive orders do not create enforceable rights. Instead, they just establish rules of conduct for executive branch personnel. In the absence of action by Congress on this subject, aggrieved individuals cannot sue to enforce these measures or to recover damages for violations.
Related Readings on Dissenting Justice:

Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)

Waffling or Just Filling in the Details: Obama's Statements on Guantanamo Bay Raise Questions


Aeneas said...

I am glad you've posted on this subject. These three executive orders, or rather the 'subject' are the ones making me, and others I am sure, uncomfortable, largely in part because of a knee jerk reaction on my part--like, get those bastards, etc. etc.--and partly because I don't understand or know enough about 1)how will this affect our security and ability to obtain information and intelligence, and therefore thwart or deflect future actions by terrorists and their organizations, particularly the ones in this country, 2) what mirror safeguards/mechanism will be in place to ensure that the intelligence is obtained and that the wall to deflect attacks or future attacks is still there.

I have not stomach for torture, and the US should be the last nation that uses it. I am very, very uneasy with tearing down Gitmo and even more uneasy with integration in the general prison population and legal system.

Again, some of this unease is out of ignorance with the legal implications and safeguards. The other side of my unease is that something is getting torn down, that for better or worse worked quite well, or at least so is the evidence, but I see nothing put in its place, except some fuzzy touchy warmy feely thing about we're going to be respected, loved and whatever.

So, the jest of this long comment is--I would love to hear more from you on the subject, as your prospective is both knowledgeable and realistic; and fair and from the progressive point of view. I heard what the conservative point of view is and it makes some good points that resonate with this armchair nihilist. (Except for the torture one. I am glad that is off the books.)

I have to say that I am very, very uneasy right now and it's beginning to take the bloom off my optimism (the kind that believes 'God takes care of children, drunks and United States. I think it was Mark Twain who said that; sounds like him. Not the kind of optimism that Mr. O will make the oceans part.)

A complicated subject that only time perhaps will tell.

1950 Democrat said...

I think you mean "do not create" in the first sentence below.

No Enforceable Rights
Finally, the executive orders do create enforceable rights. Instead, they just establish rules of conduct for executive branch personnel.

Darren Lenard Hutchinson said...

Thanks 1950. That's what I meant.

Darren Lenard Hutchinson said...

I am not a "torture scholar" (some exist), but the gist of the argument by anti-torture advocates is that torture does not advance intelligence, and actually produces unreliable evidence. People will admit to anything when they are subject to torture. There is a lot of research on this subject that confirms this argument (although, as with everything, conflicting evidence exists).

As for national security concerns, most of our allies, including countries that experience greater threats from terrorism than the US, ban torture and are signatories to international legal norms on the issue. I am not convinced that "US exceptionalism" warrants a more lenient standard.

Once GITMO is closed, I am sure that terrorism and war captives will not sit in cells with burglars. There are other military detention facilities, and the executive orders do not preclude using those (a point that some civil libertarians already criticize). Also, prisoners can be kept in isolation if integrating them in the general population risks the lives of others. I am sure that the task force working on the subject of detention will consider all of these issues.

Finally, the orders do not preclude the use of military tribunals or a "national security court." But on this point -- a trial in a federal court does not mean that the defendant will escape conviction. On the contrary, the US prosecutes and convicts people in federal courts every day! I am not sure why people believe that federal courts cannot deal with these issues. And popular culture suggests that defendants "get off" much more than they actually do.

Having said that, I can see and appreciate both sides of the issue. I know military tribunals, if done correctly, can secure due process, but I also have tremendous problems with the unitary process where the military serves as the "arresting officer," the prosecutor, the judge and jury. This does not sit well with me because, despite safeguards, the concentration of so much power into one unit invites abuse.

I know that Obama's most liberal supporters will demand that criminal trials take place in regular civilian courts. I suspect that his advisors will aim for military tribunals. If I had to guess, I would say that he's likely to follow their recommendations for some suspects. He is a careful centrist. He could explain it by saying something like "we are going to make the military courts work properly" - not like Bush.

coffee said...

closing Guantanamo represents a step in the right direction; pretty soon the U.S. will be able to join the world community once again

Darren Lenard Hutchinson said...

Hey, Coffee. thanks for posting. I suspect you're correct. This will certainly help the image of the US. But beyond image, people will probably debate what happens outside of GITMO. If detainees are simply transferred and held for long periods of time in another military facility or in a prison, then things will look like the past. So, even though this is a great first step, a lot depends on what comes next.

Ken Ballweg said...

Very good article called "Top Myths About Closing Guantanamo" in the Progress Report. Current link is
But if that is just for the current front page, Google the article title.

One of the main facts they point out is that there have been 145 convictions of terrorists in US Courts and these individuals are currently serving time in US Correction facilities on US soil. I suspect the convictions were possible because the prosecution didn't have to deal with the taint of coerced statements by the defendant.

All of the Fear Machine's attempts to make a Boogy Man out of closing Gitmo ignores the reality of the Federal system being able to do just fine dealing with people who were every bit as "dangerous", if not more so, than the people being held in Gitmo.

It's amazing what the Fear Machine (especially Right wing oriented attack industry) can do to create such a disproportionate sense of threat out of something that we have already been experiencing with none of the imagined dangers being realized.

The only way they can get away with saying "Bringing people like this into the US, using the Federal Court system to try them, and then holding them in US prisons is [insert ominous hyperbole here]" is by totally ignoring the fact that it has been going on for more than a year, with no terrible consequences for US citizens. In fact, it can be argued that people are safer having used due process and getting convictions.

Reality is the best test for inflated claims.

Darren Lenard Hutchinson said...

Coffee - thanks for the post. I agree that this is a good step, although I want to see where the detainees are taken.

Ken - right on the money as usual. I am tired of "fear."

Real Time Analytics