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.