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. Read more

News from the Middle East has rightly been drowned out by the pro-democracy protests and subsequent crackdown in Iran. Amidst all the attention to Iran, a speech by Palestinian Authority Prime Minister Salaam Fayyad at Al Quds University in the West Bank responding to Israeli Prime Minister Benjamin Netanyahu’s speech on the future of Israeli-Palestinian relations has been lost in the shuffle. But Fayyad’s speech represents a strong embrace of Palestinian state building as a way of moving forward toward a two state solution, despite the daunting obstacles lying in its path.

In his speech, Fayyad called on Palestinians to “unite around the project of establishing a state and to strengthening its institutions… so that the Palestinian state becomes, by the end of next year or within two years at most, a reality.”

This schedule is extremely ambitious, given that any attempt to build Palestinian state institutions will face the everyday obstacles of the occupation – checkpoints, the separation wall, closures, and the like – as well as the likely hostility of the current Israeli government. While the United States Security Coordinator under Gen. Keith Dayton is currently working to build coordinate the building of professional Palestinian security forces, the United States will have to lead a more robust diplomatic effort to both ease the problems the occupation poses to state building and provide the necessary support to the Palestinian Authority to actually build the necessary state institutions.

In other words, the United States needs to get Israel to trust that the Palestinian Authority can effectively govern and control the West Bank. It’s ironic that this situation exists, considering Israel apparently trusts Hamas – the group that’s committed to Israel’s destruction – to run the Gaza Strip, while not affording the same trust to the PA, which has been negotiating on the basis of the two-state solution since the early 1990s. Via the USSC, the United States has played a valuable role in soothing some Israeli fears about Palestinian security forces, but more could be done on a broader scale.

What Fayyad is proposing will require a crash program that both builds long-term institutions while ameliorating current conditions in the West Bank. These two efforts are complementary, given that effective state institutions will be worthless if they’re unable to function properly due to the restrictions imposed by the fact of the occupation. Working out a realistic plan for Palestinian state building in Fayyad’s timeframe will require coordination between the United States, the PA, and Israel, as well as coordination between executive departments and agencies and Congress and the White House here in Washington. Senator Mitchell’s team will have its work cut out for it. Read more