A Critical Assessment of the New Obama Executive Order on Detention

By Professor David Glazier

The White House released an Executive Order (EO) yesterday establishing new administrative review procedures for those currently held at Guantánamo and not actually being criminally prosecuted. The order has generated a wide range of responses. Attorneys representing Guantánamo detainees and organizations like the ACLU, which contest U.S. legal authority to indefinitely detain anyone, are predictably upset that the Obama administration would give new life to this policy.

Commentators like Brookings' Ben Wittes, who have argued for statutory authorization of indefinite detention with little apparent concern about whether that would comport with either the Constitution or international law, are generally pleased. I fall into a seemingly lonely middle ground, recognizing that the new EO modestly improves U.S. policy but disappointed that the administration failed to seize the opportunity to solidly ground its conduct n the law of war (LOW).

The key assumption underlying the EO is that the United States remains in an armed conflict with al Qaeda and the Taliban, justified under international law as self-defense in response to 9/11 and authorized under domestic law by the September 18, 2001 Authorization for the Use of Military Force (AUMF). Many critics still contest this view although it was settled as a matter of U.S. law by the Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), effectively holding the AUMF to be the functional equivalent of a declaration of war and authorizing exercise of such "fundamental incidents" as indefinite detention of adversarial fighters.

My core criticism is that the United States continues to play 'fast and loose' with LOW rules, cherry picking authority it likes while ignoring constraints it finds inconvenient. Despite President Obama's asserted respect for the rule of law, his EO continues this approach. It broadly asserts authority to continue "law of war detention" at Guantánamo but proclaims the new review procedures it establishes are "a discretionary matter." The only actual reference to the LOW is a brief statement that the EO will be carried out consistent with "Common Article 3 of the Geneva Conventions" (CA3).

The government continues to fail to legitimately ground either the characterization of the conflict or those it detains within LOW rules. In its Hamdan v. Rumsfeld decision, 548 U.S. 557 (2006), briefly halting the military commission process, the Supreme Court held that at a minimum, CA3 applied, which was sufficient to find the trials deficient. The government has subsequently relied on compliance

with CA3's minimalist provisions as a sufficient benchmark for its conduct ever since. The fallacy with this approach is that CA3 applies only to non-international armed conflict (NIAC), conducted within the territory of a single nation. NIAC rules provides no detention authority, leaving that to national law since the adversary in internal conflicts necessarily breaches the domestic law of the government they are fighting. But if the U.S. is going to rely on detention authority from the LOW, it must logically elect to accord the adversary belligerent status and apply the full scope of that corpus juris, just as it has done in numerous previous conflicts where the enemy was not otherwise entitled to demand such treatment, including the Civil War, various Indian Wars, and the Philippine Insurrection. This does not necessarily mean that the full Geneva Conventions must be applied, since by the facial terms of these treaties they apply only to conflicts between two or more state parties, which al Qaeda clearly is not. But a large body of customary international law contains most of the same rules, including helpful guidance for humane treatment found in Article 75 of Additional Geneva Protocol I, which the administration specifically recognizes in as binding law in a fact sheet accompanying the new EO. (I have long argued for the application of these rules as the appropriate international legal standard for judging U.S. conduct, including specifically military commission procedures).

The other core unaddressed issue is the legal classification of opposing fighters. The LOW addresses two basic categories, combatants and civilians directly participating in hostilities, providing differing rules for the targeting, detention, and when appropriate, trials of each. The U.S. approach has been to deny legal recognition of its adversaries right to fight, implicitly ruling out the combatant classification, yet also failing to accept restrictions imposed on combating "civilians." The new EO establishes a formal triennial hearing process for continued detention augmented by twice-yearly administrative reviews and establishes the criteria for continued detention as a finding that the detainee poses "a significant threat to the security of the United States." These provisions generally comport with the Fourth Geneva Convention's rules for detaining civilians although the EO proclaims its procedures as "discretionary." Other elements of the EO review process, including mandates that all government agencies cooperate in collecting relevant evidence, the assignment of a personal representative specifically now charged with assisting the detainee, and permission for any counsel retained by the detainee to participate in reviews are all substantial positive enhancements to the process, addressing demonstrated deficiencies with the Bush administration's previous Annual Review Boards.

Overall the EO is thus generally a positive development, providing better procedures for reaching accurate detention decisions than those previously employed. But it is disappointing that the Obama administration declined to take the opportunity to firmly ground its policies in the LOW. And ultimately the EO does nothing to solve the greatest current challenge it faces with respect to Guantánamo detainees, finding safe homes for the substantial number of individuals already approved for release. Improved review processes will be wholly meaningless if they do not result in the prompt release of those determined to no longer qualify for preventative detention.