More On Today’s Executive Orders

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by hilzoy


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 Guantánamo 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 Guantánamo, 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.

12 thoughts on “More On Today’s Executive Orders”

  1. It’s worth remembering that back in 2004, the ICRC did have access to Guantanamo, with this result:

    The International Committee of the Red Cross has charged in confidential reports to the United States government that the American military has intentionally used psychological and sometimes physical coercion “tantamount to torture” on prisoners at Guantánamo Bay, Cuba.

    But then in 2007 it was reported:

    A confidential 2003 manual for operating the Guantánamo detention center shows that military officials had a policy of denying detainees access to independent monitors from the International Committee of the Red Cross.
    The manual said one goal was to “exploit the disorientation and disorganization felt by a newly arrived detainee,” by denying access to the Koran and by preventing visits with Red Cross representatives, who have a long history of monitoring the conditions under which prisoners in international conflicts are held. The document said that even after their initial weeks at Guantánamo, some detainees would not be permitted to see representatives of the International Red Cross, known as the I.C.R.C.
    It was permissible, the document said, for some long-term detainees to have “No access. No contact of any kind with the I.C.R.C.”

    So, yes, another repudiation.
    And the Bush folks are all cranky.
    Awww.
    Department of Things That Are Great: what Karen Hughes thinks no longer matters.
    Completely digressively, but btw, apparently Kirsten Gillibrand is going to be the NY Senate appointee. I wrote about her two years ago.

  2. Utterly trivially, incidentally, I completely agree with Glenn Greenwald when he writes this:

    […] Rather obviously, if you afford due process safeguards only to those people you’re sure you can convict anyway, but then deny them at will to whomever you think can’t be convicted under the normal rules, that isn’t “due process.” That’s a transparent sham, a mockery of justice.

    However, it also instantly caused me to flashback to this: “Fielding Mellish: I object, your honor! This trial is a travesty. It’s a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham.”

  3. People keep telling me that Obama’s going to inevitably disappoint me. I hear it from pundits, from grumbling conservatives, from family, even from fellow Democrats.
    After today I can honestly say: no, no he won’t. Because if everything else he does — and I mean everything else he does — is absolutely totally crappo . . . he still did this. Hell, he can personally take a dump on my lawn and kill my cat, and he couldn’t truly disappoint me now.
    He made us America again.

  4. I also like the broad language: as I read it, this covers detention facilities operated by contractors as well as US government employees.
    Implicit in this kind of statement is, I think, the thought that the CIA, Pentagon, etc. are interested in parsing the order to avoid it or that the Obama administration is interested in appearing to do the right thing while exploiting uncertainties or loopholes. Let’s hope that’s not so anymore.

  5. Also, i would note that one of the executive orders basically says that no one in the executive branch can rely on certain opinions issued by the Department of Justice and/or the CIA between 9/11/01 and 1/20/09 (basically relating to the Geneva Conventions, Torture Convention, and Torture Statute).
    Good stuff.

  6. Golly, it’s almost like elections matter, like Obama meant all that stuff about America returning to its best ideals in his speech on Tuesday!
    I’m not quite with C.S. – Obama could still do things to make me hate him; anyone with that much power and facing those problems could. But he’s certainly off to a good start.

  7. I just read them. I still can’t believe it. I never thought I’d see the day when an American chief executive of any party would issue such broad, lucid civil libertarian orders.
    Much as the collaborationist press keeps trying to ferret out loopholes they are just not there. My special favorite is the end of #3 (the order that Jonathan Alter would like to think leaves open a back door for “enhanced” techniques to re-enter), to wit:
    Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340 2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal “stalking” statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109 366; the Geneva Conventions; and the Convention Against Torture.
    Back door just slammed the f*&# shut, my friend.

  9. Section 5.e.ii:

    to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.

    That seems like an instruction to correct the policies that have allowed extraordinary rendition since Clinton. Wow.

  11. Ugh: the thought that the CIA, Pentagon, etc. are interested in parsing the order to avoid it or that the Obama administration is interested in appearing to do the right thing while exploiting uncertainties or loopholes. Let’s hope that’s not so anymore.
    It’s reasonable to impute good faith to the Obama administration wrt exploiting loopholes, but even then the amount and degree of commitment varies greatly from individual to individual. But hope that the Pentagon and especially the CIA are somehow magically no longer interested in doing so is delusional. It’s downright dangerous and irresponsible as an approach to assessing their actual involvement in torture.
    Look at the pushback already being transmitted via “journalists” and the Democratic leaders of the Senate Intelligence committee. Look at Dennis Blair’s unwillingness to call waterboarding torture, and to commit to ending intelligence agency-sponsored torture.
    The Army Field Manual currently provides for torture in its ‘Appendix M’: prolonged and renewable isolation, sensory deprivation and disorientation, and sleep deprivation/disruption. These are tortures, which do lasting damage. They were developed by the CIA in research programs that spanned decades, and they’re not about to give it up. This revised FM was a triumph for Rumsfeld and Cambone, in that they succeeded in adding torture techniques to the official procedures.

  12. “Department of Things That Are Great: what Karen Hughes thinks no longer matters.”
    Don’t Ari Fleischer.
    On second thought: Forget him.

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