President Obama’s Executive Order On Indefinite Detention Will Be A Failure

The Washington Post, USA Today, the New York Times, and others report that President Obama is preparing an Executive Order (EO) spelling out procedures for the indefinite detention without trial of detainees held in Guantanamo.  I haven’t read a draft, and I don’t need to read a draft to know that the EO is destined to fail.  For additional thoughts, read Lawfare, where there are analytical posts by Bobby Chesney here, Jack Goldsmith here, and Ben Wittes here.  Spencer Ackerman also has a thoughtful critique here.

The problem with this EO for indefinite detention (and EO’s more generally) is the easily changed nature of the procedures —they exist at the whim of the Executive and can be changed to suit his needs.  This process is going to create an opening for additional litigation, but unlike a statute the EO will lack the legitimacy of open and robust debate married to fixed procedures.  As evidence of this fact one need only look back to the pre-Hamdan military commissions (MC) established by Presidential Military Order.  Under the PMO MC’s the changing nature of the procedures was one of the major critiques raised by the detainees, and they used the changing process as an opening to argue about Executive authority and all manner of other issues.  Their critique had some merit on due process grounds: the original procedures for trials were spelled out in a lengthy PMO, they were supplemented by a handbook somewhere within the DoD bureaucracy, those rules were then frequently modified due to flaws (real or perceived).  All of this took place within the bureaucracy, but without the type of transparency and input one would get in any other bureaucracy governed by the APA or even with the type of transparency that governed changes to the UCMJ.  All of these factors made for big critiques of the PMO MC’s on legitimacy grounds, and it gave the detainees an opportunity to argue that the rules of the game were changing to further the end of successful convictions.  They argued about process and the PMO, and as good litigants, they also argued about Presidential power, sources of law such as IHL and IHRL, they raised questions about statutory authority and how to interpret the statutes authorizing the President to try detainees by military commission, and ultimately courts at different levels addressed all of these questions.

In this instance, I can’t see how some new indefinite detention process will be perceived as legitimate and not…Click “Read the full entry” below to continue reading.

In this instance, I can’t see how some new indefinite detention process will be perceived as legitimate and not be litigated on some level.  Now maybe the Executive wins all of these fights on standing grounds, but with a dwindling AUMF I’m not so certain.  Moreover, I can’t imagine that counsel for a detainee will say “Thanks for the additional process, that isn’t what we wanted but we appreciate the gesture.”  Rather, I think they will use each additional granting of process as a mechanism for new litigation (I would).  Think about how this will play out:  President Obama will need to implement an EO spelling out the process in detail (What are the burdens of proof and production?  How are privilege issues and classified information issues handled?)  Once spelled out those rules will be subject to dispute, raising the question of who will determine how those matters should be resolved.  Detainee counsel will likely interpret a provision differently than the government.  Will the government have the authority to respond by merely stating “Well, we wrote the rules, we are the review board, and we say they mean what we say they mean.”

We’ve seen this somewhere before and the optics on it were horrible.  Remember the old PMO military commissions?  In that system the executive branch through the SecDef brought charges against detainees, all appeals ultimately wound their way back to the SecDef, a process that was widely criticized (by detainees and in the Hamdan opinion) as insular.  It’s realistic to believe that the executive branch in promulgating an EO will want to establish an internal review process, but internal unreviewable processes are exactly the type that the Bush administration was roundly criticized for creating.  Of course, the Obama administration can argue that the detainees would never have had this additional process if it wasn’t for the grace of the President’s EO, but that argument will be competing against the various interest groups arguing “President Obama has created a process where he writes the rules, he can change the rules at any time, and he is the sole judge of what those rules mean.”  I don’t know who wins that fight in court, but I can tell you who wins it in the press and it isn’t the President.

Now this all assumes that the President creates a robust system fixed for the duration of his presidency.  Even then, it’s only fixed until 2012 or 2016 at which time a new President can throw the whole thing out.  Of course, that’s a critique of legislation, but to change legislation requires a lot more political will than changing an EO.  Indefinite detention already faces serious legitimacy critiques, I don’t think the remedy is to implement procedures through a process as malleable as an EO — rather it should be openly debated in Congress.  For those who are proponents of indefinite detention, they have to recognize that a statute is necessary, not merely preferable.  It is necessary because the potential cost of screwing things up with an EO will doom indefinite detention legislation…indefinitely.