Executive Order Is First Step In Regaining Initiative On Detention Policy

Our guest blogger is Ken Gude, Managing Director of the National Security and International Policy Program at the Center for American Progress.

The Obama administration’s forthcoming executive order on detention will establish a meaningful review process for Guantanamo detainees held in law of war detention. This type of detention has been endorsed by the Supreme Court and has been consistently upheld by lower courts in the ongoing habeas corpus cases. More importantly, this move will allow the Obama administration to regain some of the initiative on detention policy that has been dominated by Congress for much of the last 18 months.

Legal authority for the detention of al Qaeda and Taliban fighters captured in Afghanistan or Pakistan comes from the Authorization for the Use of Military Force, passed by Congress on September 18, 2001. The Supreme Court endorsed this detention authority in 2004 in Hamdi vs. Rumsfeld, and lower courts have further refined this authority in the numerous habeas proceedings brought by Guantanamo detainees. It is incorrect to claim that this type of detention is unlawful or unconstitutional.

The Obama administration’s extensive review of the cases of Guantanamo detainees it inherited from its predecessor determined that 48 detainees would be held in this type of law of war detention. This Executive Order is a significant improvement on the process, such as it was, created by the Bush administration and in fact goes well beyond what is required by the Geneva Conventions.

Detainees will be represented by attorneys, the review will be conducted by a broad group of agencies — not just the military, and the review board will be separated from those who made previous decisions on that detainee’s detention. This is a real adversarial process that the American people can have confidence will come to the best possible determination about the necessity of each individual detainee’s continued detention.

Make no mistake: Guantanamo is a stain on America, one that seriously weakens our overall counterterrorism strategy. America’s military and intelligence agencies all conclude that Guantanamo provides our terrorist enemies significant propaganda victories and boosts their recruitment, creating more terrorists than it has ever detained. Closing it is a national security imperative and the Obama administration is absolutely correct to continue its push to do that.

Unfortunately, many in Congress have chosen the politics of fear, and tried to tie President Obama’s hands and prevent the closure of Guantanamo. Up to this point, the administration had not found a way to effectively push back. The most important aspect of this Executive Order is that it can be the start of that effort. It will only get more difficult in the next Congress and the Obama administration needs to take back some of the initiative on detention policy, or it risks being forced to return to the disastrous detention policies of the Bush administration.

The process for law of war detention contained in the new executive order is confined to the legacy cases at Guantanamo the Obama administration inherited from its predecessor. It is a genuine effort to establish a workable system out of the chaos of the Bush era that protects both the security of the American people and the rights of those detained at Guantanamo, all in an incredibly hostile political environment. This move should provide the Obama administration the platform from which to hold its ground against a new Congress that appears determined to use U.S. counterterrorism policy for political gain.