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Tilting at Windmills

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January 22, 2009
By: Hilzoy

More On Today's Executive Orders

Now that I've actually read Obama's Executive Orders on detention (1, 2, 3, 4; the 4th is a pdf), I wanted to highlight a few more points. First:

"The individuals currently detained at Guantanamo have the constitutional privilege of the writ of habeas corpus."

This was expected, but it's immensely important nonetheless. It's also very good that the Guantanamo order puts a lot of emphasis on speed: as it says, the detainees have been there for quite a while now, and deciding what to do with them promptly matters a lot.


"The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future."

This is also incredibly important: no more black sites.

However, my candidate for underreported detail of the day is this, from the same order:

"All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies."

This matters enormously. First, if the ICRC can visit detainees, it will know how they are being treated. But the fact that the ICRC will know where any such detainees are being held might be even more important. This order says: no keeping ghost prisoners in undisclosed locations. No more prisoners whose families do not know whether they are alive or dead. No making people simply disappear.

I also like the broad language: as I read it, this covers detention facilities operated by contractors as well as US government employees.

One last point: the Washington Post writes:

"Just hours after his inauguration Tuesday, Obama ordered the suspension of all judicial proceedings at Guantanamo Bay under the auspices of the Bush administration's military commissions system. What is to be done with the prisoners will be part of the review, sources said. Listed options include repatriation to their home nations or a willing third country, civil trials in this country, or a special civil or military system."

This description of the options in the order is inaccurate. The listed options are: Transfer, Prosecution, and 'Other Disposition'. The option of 'transfer' is described as follows:

"The Review shall determine, on a rolling basis and as promptly as possible with respect to the individuals currently detained at Guantanamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible."

I can find nothing in the order that limits any release of detainees to "their home nations or a willing third country". As far as I can see, it just says "release", period, without specifying or precluding any particular destination. In particular, nothing in the order precludes the release of detainees into the United States.

This matters. If I were in the government of a country that was asked to take in Guantanamo detainees, I'd be a lot more willing to consider doing so if it were clear that the United States was not just expecting everyone else to take care of problems it had caused, without being willing to do its part.

These orders are really, really, really good news to anyone who cares about the rule of law and basic human decency.

Hilzoy 9:31 PM Permalink | Trackbacks | Comments (17)

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I care and I'm beyond happy to hear of this executive order/change. It's been too long coming.

Posted by: Pamela on January 22, 2009 at 9:59 PM | PERMALINK

I concur with both your broad and detailed comments. I also gotta say, first, how marvelously (meant literally) things have changed, and second, how quickly I find myself getting used to it. One hopes one's expectations do not outstrip what is possible.

One observation, though. The order a.q. reads, "... any individual detained in any armed conflict in the custody or under the effective control ..." (emphasis mine, obviously enough). It therefore does not seem to be quite as absolute as subsequent remarks in the post would suggest.

Now, if we're grabbing people off streets NOT in any theater of armed conflict, I would imagine we would be unlikely to acknowledge this in any way, much less to the ICRC, so this may be a distinction without material effect. But all of a sudden, the law seems to matter again, and the law is nothing but language, so FWIW...

Posted by: bleh on January 22, 2009 at 10:01 PM | PERMALINK

Nice read, thanks for pointing out the details.

Justice is simple, the dance to avoid justice is complex.

Obama seems intent on inverting the burden. If the executive does not act quickly, information is released. Executive privilege is an active process, inaction or slow action negates the privilege.

In short, time is a weapon against the government. Delay in action leads to default of rights. This is very typical of civil or criminal proceedings.

Posted by: tomj on January 22, 2009 at 10:04 PM | PERMALINK

"These orders are really, really, really good news to anyone who cares about the rule of law and basic human decency."

Republican attacks will commence in three...two....

Posted by: Ted on January 22, 2009 at 10:10 PM | PERMALINK

"Republican attacks will commence in three...two...."

Fuck the Republicans! Now and forever!

Posted by: Lee on January 22, 2009 at 10:45 PM | PERMALINK

Good work Mr. President. We support you.

Posted by: Haik Bedrosian on January 22, 2009 at 10:59 PM | PERMALINK

Good political position, Lee. Our new 50-state strategy, that.

Posted by: rebw on January 22, 2009 at 11:01 PM | PERMALINK

I think that the inmates should all be repatriated to their home countries, or else to the localities where they were apprehended (I think I wrote this, but maybe not on this forum), except possibly for a few like Khalid Sheik Mohammed. If they are prisoners of war, then returning them to their home countries is analogous to what the U.S. did with prisoners of war after WWII.

For U.S. locations, consider the NIMBY problem:

If you wouldn't want a new powerline built in your neighborhood (as my San Diego County neighbors do not want), would you want the prisoners from the Gitmo prison released into your neighborhood? How about putting them up in a hotel in Manhattan? Maybe Pullman, Washington? Henderson, Nevada? Urbana, Illinois?

Posted by: MatthewRMarler on January 22, 2009 at 11:43 PM | PERMALINK

I half expected that, yesterday or today or maybe a week ago during the transition period, somebody at the Pentagon or in DHS would take Barack Obama into a conference room and give him whatever terrifying super-secret slideshow they use to keep powerful members of Congress in line. And then he'd come out ashen-faced, with a thousand-yard stare, and start talking like a pod person about imminent threats of physical destruction of the US that require keeping people disappeared in secret cells and invisible torture chambers. Because, you know, that slideshow must be awfully compelling, whatever it is.

I don't know, maybe it's only compelling if you're Dianne Feinstein.

Posted by: Matt McIrvin on January 22, 2009 at 11:45 PM | PERMALINK

Like complications?

Leon Panetta on "extraordinary rendition":


Posted by: MatthewRMarler on January 23, 2009 at 12:11 AM | PERMALINK

PLENTY of loopholes behind Obama's review task forces, Hilz. Boy, you dropped the ball on this.

In short, six months from now, Obama could:
• Let the CIA go back to “enhanced interrogation techniques;
• Decide to continue rendering alleged terrorists to Jordan, Egypt, etc.;
• Establish a new set of military commissions, with either a lot, or a little, changed from the 2006 Military Commissions Act baseline, and therefore still not afford Geneva protections, or fully adversarial legal defense rights, to so-called Global War on Terror detainees.

Other than those "minor details," not a problem at all!

It's no wonder that folks like Michael Ratner, the president of the Center for Constitutional Rights, are worried.

Posted by: SocraticGadfly on January 23, 2009 at 1:08 AM | PERMALINK

Sophomoric Horsefly, as a fellow Leftist (actually I guess I'm further left than you since you're a Green and I'm a Socialist) you are engaging in speculative bullshit.

Obama could also declare marshal law and impose himself as Grand Dictator for Life. And the likelihood of that happening is about the same as the bullshit paranoia you are trying to pedal.

If you want to actually influence people it helps to praise the good they do and constructively criticize the bad. For you, it seems, the only reflex you have is a knee jerk tendency to carp and quibble over every action Obama's taken.

Can you leave the pettifoggery to the Republicans? What good can Obama do if he's under a constant hail of criticism from the Right AND the Left? And do you also realize it's only been three days since he's got the job?

Sit down and shut the hell up until he ACTUALLY screws the pooch, o.k.?

Posted by: Dr. Morpheus on January 23, 2009 at 3:02 AM | PERMALINK

"...or a special civil or military system."..."

This is the dream of the republican right wing crazies...another Gitmo on US soil to hold "certain" suspects without any rights at all. Never an intention of the Obama camp...and not serving the idea of Justice in his administration.

Posted by: joey on January 23, 2009 at 3:07 AM | PERMALINK

Was there any mention of persons already convicted under the military tribunals? If the rules are unfair now, what about those who were convicted without right to legal representation? Are they to be retried? Anyone know?

Posted by: Heather on January 23, 2009 at 5:55 AM | PERMALINK

For U.S. locations, consider the NIMBY problem

Oh, swell, Marler, you refer to the rabid neocon rag Commentary. Big surprise.

It's utterly astonishing -- or it would be, if we were dealing with a person with even a shred of honesty or shame -- that after your blithe predictions of Obama's continuing Bush's policies are explicitly and rapidly rejected, you still pretend you aren't as wrong about this issue as you are about everything else.

Bullshit like this is why no one mistakes you for an honest commentator. Your shameless support of Bush's illegal and immoral policies are why no one mistakes you for a decent human being.

Shame on you, Marler.

Posted by: Gregory on January 23, 2009 at 9:18 AM | PERMALINK


You know what I mean. The Republicans had years running the show and they were a complete disaster. And it was Bush who insisted on governing as though 90% of the country had voted for him even though he actually lost the popular vote in 2000 (and very possibly the election as well). So I couldn't care less how much the Republicans are upset by what Obama does now.

Posted by: Lee on January 23, 2009 at 10:17 AM | PERMALINK


Interesting...this is someone Bush released to his buddies the Saudis in 2007, whom they supposedly "rehabilitated." Thanks for confirming his incompetence in dealing with terrorism yet again.

Posted by: Gregory on January 23, 2009 at 11:17 AM | PERMALINK



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