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The Obama Administration released an Executive Order signed by President Obama regarding "Periodic Review of Individuals Detained At Guantanamo [. . .] Pursuant to The Authorization To Use Military Force." The key provisions:

This order is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch's continued, discretionary exercise of existing detention authority in individual cases. It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law. 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.

[. . . ]Standard for Continued Detention. 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.

[. . .] Subsequent Full Review. The continued detention of each detainee shall be subject to subsequent full reviews and hearings by the PRB on a triennial basis. Each subsequent review shall employ the procedures set forth in section 3(a) of this order.

[. . .] Legality of Detention. The process established under this order does not address the legality of any detainee's law of war detention. If, at any time during the periodic review process established in this order, material information calls into question the legality of detention, the matter will be referred immediately to the Secretary of Defense and the Attorney General for appropriate action.

[. . .] 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.

I think the procedure described is adequate and while the order expressly recognizes habeas corpus rights and the continuation of the procedure for transferred detainees (to avoid appearances of forum shopping), it has two major failings imo. First, it does not provide for a direct court review of the determinations of the created board. I think it should. Instead it relies on habeas corpus petitions for the review. I think that is the wrong approach. The second problem I have is that it does not set a procedure for non-Gitmo detainees (think Bagram.) It should. More on the flip.

This is an issue I have done a lot of thinking and writing about. On February 22, 2009, I wrote a post titled Preventive Detention" And Prisoners Of War:

Glenn [Greenwald] portrays the power to indefinitely detain "alleged combatants" as something new. Clearly in a theater of war it is not. (Glenn's objection appears to be more directed at the scope of the "theater of war." And yet, the reality is that terrorists do operate all over the globe. In effect, there is an expanded "theater of war.) We used to call such detainees prisoners of war, and the Geneva Conventions applied to such detentions.

To me that is the key point to answering Glenn's question "when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it[?]" I opposed it BECAUSE the Bush Administration insisted that the Geneva Conventions did NOT apply to the detentions.

This is no small matter. It is important to remember that the key point of contention on detention policies was the application of the Geneva Conventions and the Constitution. For example, in Hamdi v. Rumsfeld, the issue was presented thusly:

This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an “enemy combatant,” and that this status justifies holding him in the United States indefinitely–without formal charges or proceedings–unless and until it makes the determination that access to counsel or further process is warranted.

In essence, the Bush Administration denied the applicability of the Geneva Conventions, but of course the case turned on the applicability of the habeas statute then in effect. But the concept is not dissimilar to what is mandated by the Geneva Conventions. For example, the Hamdi Court described it this way:

In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive's asserted justifications for that detention have basis in fact and warrant in law. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Addington v. Texas, 441 U.S. 418, 425—427 (1979). He argues that the Fourth Circuit inappropriately “ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely,” Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be “meaningful judicial review.” App. 291.

The Bush Administration argued that the courts had no say in the matter. The Court rejected the Bush Administration argument:

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’ ” (quoting Ward v. Monroeville, 409 U.S. 57, 61—62 (1972)). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ ” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.

Of course the devil is in the detail of the process that would be afforded a detainee. In Boumediene v. Bush, the Supreme Court found the Bush Administration's Combatant Status Review Trials to be inadequate constitutionally. The Court presented the question in this fashion:

[T]he question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeals, see DTA §1005(e), provides an adequate substitute. Congress has granted that court jurisdiction to consider

whether the status determination of the [CSRT] … was consistent with the standards and procedures specified by the Secretary of Defense … and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” §1005(e)(2)©, 119 Stat. 2742.

The answer was no - the Bush Administration's review did not comply with the Constitution:

We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.

. . . For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting. See Townsend v. Sain, 372 U. S. 293, 313 (1963) , overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1, 5 (1992) . Here that opportunity is constitutionally required.

(Emphasis supplied.) The Boumediene Court found that the Bush Administration scheme did not meet these requirements. An Obama Administration detention regime would have to and even more, it can exceed the bare minimum constitutional requirements. President Obama yesterday said:

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

(Emphasis supplied.) If President Obama is true to his word, I believe a fair, constitutional detention regime can be implemented, one which conforms with our obligations under the Geneva Conventions. Of course, we must be vigilant and insure a fair process is implemented. But this is always true, no matter what the President says.

Greenwald rejects the POW comparison:

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "POW's" to be held without trials, that argument was deeply misleading.  And it's no less misleading when made now by Obama supporters.  That comparison is patently inappropriate for two reasons:  (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual battle, on a real battlefield, wearing a uniform, while engaged in fighting.  The potential for error and abuse in deciding who was a "combatant" was thus very minimal.  By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc.  Instead, many of them are picked up from their homes, at work, off the streets.  In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

With all due respect to Glenn, it is HIS argument that resembles that of Bush supporters - the ones they made when arguing the Geneva Conventions do not apply to the detainees. It is simply wrong to argue that the Geneva Conventions does not apply to unconventional combatants and it is wrong to argue, in my view, that a fiar and sensible detention policy can not be devised for such unconventional combatants. In the end, Greenwald's real objection it seems to me is this:

In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

It is precisely this that is objectionable and which must be addressed and what President Obama promises to address. Of course, promises are easy. Keeping them is harder.  But, I respectfully disagree with Glenn's take on this matter.

I think the Obama Administration has complied with the Constitution. However, I think the process could be improved. More on that in a later post.

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