Our guest blogger is Ken Gude, Associate Director of the International Rights and Responsibility Program at the Center for American Progress.
Today’s Washington Post report that the Obama administration is preparing an Executive Order on detention authority is a big step in the right direction. Of course some concerns remain about the emerging policy, but many of the specifics outlined in the story — especially criminal prosecutions for future off-battlefield detentions and recognition of the train wreck that would likely come from Congress — are very encouraging. It’s not perfect, but if the Obama administration follows this path, it would be a significant improvement over the Bush administration and would go a long way towards cleaning up the mess at Guantanamo.
After Congress’ pathetic performance during consideration of Guantanamo funding in the supplemental appropriations bill, it is now evident that no matter how well-intentioned the president and some responsible members are, Congress is not a reliable partner. Whatever would emerge from the sausage grinder risks being far worse than even the already unacceptable status quo. One likely outcome from Congress would be the creation of national security courts for suspected terrorists — an option Obama now appears to have rejected — which would build on the errors of the Bush experiment with military commissions and pollute the entire U.S. justice system.
It is important to recognize that President Obama is not avoiding Congressional authorization because Congress has already approved traditional law of war detention in the Authorization to Use Military Force of 2001. The Supreme Court sustained military detention authority of those detainees captured in zones of active combat in 2004 in Hamdi v. Rumsfeld, so President Obama is on firm legal ground should he choose to limit military detention to those circumstances.
According to the Post, that is exactly what Obama is considering for any detainees captured in the future:
“Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan, and possibly in the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.”
This would be a significant shift from the Bush administration’s policy that swept into U.S. military detention virtually anyone suspected of terrorist activity captured anywhere in the world. It would restore the bright line between criminal and military detention, a crucial distinction to preserve not just in the United States, but also in other countries that look to or use the U.S. as an example.
Serious concerns remain about the prospect of continued military detention for Guantanamo detainees captured outside zones of active combat. The Post reports Obama is considering holding some of these detainees in military detention with improved due process protections to ensure as fair a system as possible.
These legacy cases are by far the most challenging to resolve in any new legal framework because of Bush administration mistakes. The overwhelming majority of the 229 detainees remaining at Guantanamo were captured in Afghanistan or fleeing the battlefield along the border with Pakistan or in Pakistan proper. Only around 30 were seized in places like Thailand or Kenya, and most of those detainees are accused of high levels of terrorist activity that should make them excellent candidates for criminal prosecution.
Obama officials are concerned, however, that torture has tainted much of the evidence against some detainees and other information has been lost after years of mishandling by the Bush administration. Yet, if these detainees are who the government believes them to be, sufficient evidence should exist to obtain a conviction in federal court, even if it is not currently in possession of prosecutors. No evidentiary concerns exist on the most important legacy case, 9/11 mastermind Khalid Sheikh Mohammed, and fortunately Obama looks ready to bring criminal charges against him and the others accused of complicity in the 9/11 attacks.
The detention policy that President Obama inherited was a complete disaster. Unwinding the Gordian knot has proven an enormous challenge, but it looks now as if Obama is heading in the right direction. It is far from a done deal and the continued military detention of some Guantanamo detainees is troubling. But Obama appears to have rejected the two things that advocates for change most feared — a preservation of broad military detention authority for off-battlefield captures and the prospect that Congress could permanently enshrine in U.S. law a policy as bad or worse that Bush’s. The policy is not perfect but it is worthy of support as Obama tries to clean up the mess at Guantanamo.