Disappointment on Detention: Reviewing President Obama’s Latest Executive Order

There’s a lot to dislike in President Obama’s latest executive order, continuing detention at Guantanamo Bay, and permitting military tribunals to resume for some (as of yet undisclosed) subset of individuals. But let’s keep two things in mind. First, if we’re looking for someone to blame, the target remains Republicans, who’ve blocked any attempt to resume the rule of law. And second, this is not a complete concession. The order…

  • Does not disturb federal courts’ habeas jurisdiction: Republicans famously blocked detainees’ ability to appeal to the federal courts, a right that had gone largely undisturbed for, oh, say, a thousand years. President Obama preserves the right explicitly:
    • § 1(b): “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.”
    • This statement will also affect federal appellate courts’ construction of the Boumediene right. To the extent the D.C. Circuit has tried to narrow it, Obama’s executive order calls that determination into doubt.
  • Contemplates prosecution when (and if) feasible: this isn’t a full retreat.
    • § 6: “As to each detainee whom the interagency review established by Executive Order 13492 has designated for continued law of war detention, the Attorney General and the Secretary of Defense shall continue to assess whether prosecution of the detainee is feasible and in the national security interests of the United States, and shall refer detainees for prosecution, as appropriate.”
  • Provides for regular review with the possibility of prosecution or release: naturally, we’ll have to wait to see how this provision is implemented. But it’s a far cry from truly indefinite detention, as implemented and still supported by congressional Republicans.
    • § 2: “Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.”
  • In stark contrast with Republican policy, forbids torture and directly applies Geneva Convention’s Common Article III.
    • § 10(b): “This order shall be implemented subject to the availability of necessary appropriations and consistent with applicable law including: the Convention Against Torture; Common Article 3 of the Geneva Conventions; the Detainee Treatment Act of 2005; and other laws relating to the transfer, treatment, and interrogation of individuals detained in an armed conflict.”

Congressional Republicans present national security questions to us as black-and-white: we’re either made safe by the Gingrich/Cheney cabal’s draconian-measure-of-the-day, or put in direct danger by the Democrats’ terrorist coddling. That’s the wrong way to look at complex questions, and let’s not buy into that dichotomy from the other side. Even if we’re not where we’d like to be on civil rights, we remain light-years ahead of Boehner’s America.



  1. “There’s a lot to dislike in President Obama’s latest executive order…But let’s keep two things in mind. First, if we’re looking for someone to blame, the target remains Republicans…and second, this is not a complete concession.”

    Whatever helps you sleep at night.

  2. Beats knowing your vote suborns torture…

  3. Yay – no torture. What else do you have to applaud about?

  4. I applaud nothing in this order, and I continue to be deeply disturbed at the continuation of these policies. Both Ames, and many Republican commentators, seem to think everything is OK because Congress passed a reauthorized and expanded Patriot Act codifying many of these practices.

    Balderbash! Indefinite confinement is torture of a certain kind, and as a ratifying signatory to the UN Convention on Torture, we violate both international standards and our own Constitution by not trying these folks. We also violate our own laws, and Republican bandying of the “rule of law” that supposedly makes us exceptional, when we do try them in military commissions with looser standards of evidence then our federal courts (i.e. confessions derived from torture are often admissible). This is deeply wrong action on our part as a nation, and it needs to stop, regardless of who is in the White House and why they do it.

    Less stinky sh*& is still sh*&.

    1. Phillip, I’m on record as being opposed to ‘indefinitive detention’ (the President’s phrase) and I agree that it constitutes a kind of torture itself. Ames is rationalizing because his guy has let the Left down on this issue.

    2. I’m not happy about it either, but it is a step in the right direction. If the honorable members opposite would get out of the way, we could get there a lot faster.

      1. Riiiiiiiight….

        No one on the Right coined the phrase ‘indefinite detention’.

      2. Hold on. Is it your contention that Obama, not the Bush administration, created indefinite detention?

        Or that congressional Republicans aren’t fighting the administration’s attempts to unwind it?

        Or both?

        1. It’s my contention that Obama sought to create the legal framework to allow it.

        2. …because a Republican President strapped his hands to the wheel, and a Republican Congress cut the brakes.

          1. Then why didn’t he tell voters that in 2008?

          2. Because elections are about the plans you make, not how the other guy dashes them.

            1. He gave no caveats in 2008.

            2. So this is your ideal Republican stump speech:

              “WE WILL ROLL BACK OBAMACARE provided we get the votes in the Senate, which we probably won’t, and provided the President doesn’t veto it, which he probably certainly will!!!!”

              1. Republicans cannot issue an executive order – Obama can.

                The end.

  5. The law doesn’t work like that. Republicans either have, or have plausibly threatened to, strip the executive branch of funds for stateside trials. Soooooo.

    1. So close it and transfer them to federal prisons and dare the Right to stop it.

      1. um yeah, ok, like these guys have the stones to do that . . .

  6. Who would possibly have the stones to do that? That, though a good idea to you and me, would strain credulity as a West Wing episode plot.

    1. Well clearly not our President but it’s the ‘honorable thing to do’. Why not fall on his sword in the interest of national healing and marginalizing extremists?

  7. I bet your guys would love that! This has officially become concern trolling.

    1. So you’re saying that we shouldn’t ask our public officials to do something that is politically damaging in the interest of honor or national unity?

    2. Why would it be politically damaging to do something that 1) he campaigned to do; and 2) he signed an executive order to do?

      Oh wait, being honest and having principles is politically damaging.

      1. I’m asking Ames – what is the harm then?

  8. I don’t think of high-stakes games of political chicken as winning strategies. The instigator tends to lose. See, e.g., 1994 Republican Party.

  9. Those……………… really aren’t comparable.

    1. Sure they are – why can’t Obama man-up in exactly the same way you proposed for Boehner?

      1. Because calling a false claim false is different than restructuring a military-judicial complex?

        Now, I am no fan of Obama here, or, well, pretty much anywhere else, save in comparison to the other option. He’s not liberal enough for me. But I do recognize that there’s an important difference between calling out a falsehood (i.e., “Obama is not a naturally-born American citizen”) and shutting down a system of abuse and torture that’s been up and running for quite some time.

        It would indeed be nice for the Democratic party writ large to cowboy up and actually act like liberals instead of attempting to appease the GOP daddies who are currently spanking them all over the place, but that’s not likely.

        1. Well he shut down the torture part with one executive order – why not take care of phase two in the same fashion?

          1. Because he’s spineless? I don’t know.

            The only thing I’m saying is that it is a category mistake to place the continuation of detention at GTMO and refusing to call a lie a lie in the same bin.

            1. Both are politically dangerous and require courage beyond the desire to keep one’s job. Ames said that boehner should fall on his sword in the interest of shutting up Birthers (although he later admitted it would probably have little effect). Birthers represent a crazy but un-important element in American politics. On the other hand we have a real travesty of justice and morality taking place and the President could actually stop it. So no, they aren’t the same but in light of the potential success rate one choice seems more clear.

              1. Two issues here.

                1) The president lied. A politician failed to make true on his campaign promises. OH MY GOD. Whatever will we do?

                2) Boehner has failed to say that lies are lies. This is also unsurprising, but seriously? Birtherism is way more prevalent than I think you give it credit for.

                1. The prominence of Birtherism is irrelevant. While it’s an extremely silly school of thought it doesn’t really represent a challenge to governing. In this way it’s no different than the % of Democrats who believed Bush stole the 2000 election. They were an annoyance but the country moved on.

      2. Right. Don’t get me wrong, I’ll have fancy dreams where President Ames unilaterally closes Gitmo, calls Speaker Boehner, and just dares him to deny funding for stateside trials, but no rational administration will ever go there. I’d go so far as to say there’s never been anything that bold in all of American politics, short of FDR’s courtpacking scheme.

        It would make a good West Wing script though. I picture this as a Toby idea, egged on by Josh only after some convincing, and over Leo’s objection.

  10. So in your world, it takes exactly the same amount of political courage to stand up to the Birthers as it does to stand up to the entire House of Representatives.

    1. It’s not the whole House – it’s just the majority. Surely his own party will support him? And also the American people. He’d certainly gain a little respect from me.

      The point is that it doesn’t matter how big the issue is. Courage is courage. These people are being held without trial and not only has he done nothing but he has actually tried to strengthen the legal justification for their detention.

      1. Yes, and it’s bullshit. There is still a difference between a politician saying something like “Yeah, that’s crazy talk” and shutting down a system of torture and oppression that is legislatively entrenched.

        Do you think there is not a difference? For once, just say “yes” or “no”.

        1. i’ve already said that i don’t think there is a difference.

  11. Let’s go for analogies. It’s the difference between bagging a womp rat in a T-16 and making a run on the Death Star. One fight you could lose.

    1. So the potential for Obama to lose a political fight outweighs the human rights of the people being held without trial?

  12. It’s neat how quickly you pivot from a point when you lose it.

    And no. This isn’t a win-or-lose thing. This order is a path to normalcy, and in the face of a likely loss, should you go for broke, that’s the responsible position to take.

    1. When someone suggests that it’s more acceptable to ignore a moral failing of the government than to ignore a crazy PR ploy I think it’s probably best to pivot away as fast as possible.

  13. And all that now said, the President signed an Executive Order early on to direct the DoDO to close Gitmo’s detention facility and transfer the prisoners state-side. The sticking point is Congress keeps passing appropriations language saying you can’t use appropriated funds for the action. So, technically, what the President is doing is reversing his own order to his subordinates through inaction.

    This means the politically courageous thing was already done, its the implementation of courage where he is failing.

    And Ames, torture and indefinite detention are morally wrong, regardless of the legal footing established post-hoc to try and cover them.

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