JURIST Guest Columnist Lt. Col. Stephen Abraham (US Army, ret.), formerly assigned to the Office for the Administrative Review of the Detention of Enemy Combatants, says that the Executive Order for the Periodic Review of Individuals Detained at Guantanamo Bay Naval Station is illusory in that it creates an unnecessary process that does not address the fundamental question of whether a person held at Guantanamo has been lawfully detained….

On March 7, 2011, the President signed the Executive Order for the Periodic Review of Individuals Detained at Guantanamo Bay Naval Station. While others will presume to weigh the political aspects of the Order, it is with the legal aspects – more fundamentally, the nature of the power exercised – with which I take particular exception.

The Order makes clear that it does not create a source for detention authority nor does it affect the scope of existing authority. (Section 1(b)). Though seemingly relegated to nearly the end of the Order, perhaps an afterthought, the Order concedes that “the process established under this order does not address the legality of any detainee’s law of war detention.” (Section 8). Giving due regard to the explicitly excluded aspects of detention, the discussion within the Order of the premise for detention (the necessity to protect against a significant threat to the security of the United States (Section 2)) is gratuitous if not outright misleading.

The Order has absolutely nothing to do with the legitimacy of indefinite detention. Instead, it is a self-indulgent exercise by which the Chief Executive, purporting to rely on such authority as the Constitution and the laws of the United States of America, has declared his office to be the sole arbiter of how the nature of rights – no longer fundamental – are to be defined. With respect to that latter point, it is interesting to note that the Order reinserts an argument seemingly abandoned by the Administration for nearly two years, that the power to detain is to be found in the Constitution, specifically Article II, and not solely the AUMF. In that regard, the Order seems to do absolutely
nothing to clarify the questions regarding the source and contours of powers to detain individuals, potentially indefinitely.

Instead, the Order speaks to yet another process for reviewing the continued detention of individuals held at Guantanamo, some now for nearly a decade. However, the Order is less about creating yet another administrative review process and more a pronouncement that what we might regard as the most fundamental of human rights – our liberty interest – is an indulgence, an exercise of Executive largesse upon which all other rights depend.

This conclusion is founded in Section 1(b) of the Order, language that speaks succinctly and chillingly to the power to detain indefinitely. However, it is not with the possibility of indefinite detention with which issue is taken but, rather, that the exercise of this power is ultimately subject to the discretion – the whim – of just one person. The Order emphasizes both the fact that the detention itself is discretionary and, as well, the process of review. Coupled with the stated grounds for detention and what emerges is a chilling view of the fine line between freedom and captivity.

In the criminal law context, prosecutorial discretion – the power to choose whether to bring criminal charges – has created a tension between the three branches of government that ultimately seeks to find a point of balance between the interests of the individual accused and society. Criminal laws are passed based on societal imperatives and not to target a specific wrongful past act; ex post facto laws are expressly forbidden by the Constitution. Judges arguably take a secondary role as prosecutors decide what laws to prosecute and the individuals against which to proceed, leaving largely to defense attorneys the responsibility for challenging the facts. As a result, the executive branch plays a prominent, if not dominant, role in the legal process. However, this exercise is not without limits. Though assiduously avoiding any hint of advocacy, judges serve the critical role of ensuring that the legal process comports with Constitutional due process.

Sadly, the process described within the Order has everything to do with prosecutorial discretion but without critical safeguards. More odious is the fact that the Order at once presumes the simultaneous and exclusive authority of the Executive Branch to decree law, dictate the manner of exercise, and decree the law’s constitutionality, both in its
expression and in its execution.

The Order creates another review process but one not targeted to the underlying validity of the detention. Rather, that detention is presumptively valid, subjecting the detainee only to a tri-annual inquiry of whether continued detention is consistent with security interests. Even were a specific detention is determined not to be justified on national security grounds specified under the Order, there is no legal obligation to effectuate the release of the person detained. In fact, provisions of the Order such as Section 5(1) speak to situations in which a person “whose continued detention has been determined not to be warranted,” – as if to conspicuously avoid any possible suggestion of innocence or wrongful detention – could be held for eighteen months before the failure to effectuate his release is subject to review.

Ultimately, the Order is an illusion. It creates an unnecessary process that does not address the fundamental question of whether a person held at Guantanamo has been lawfully detained. It will not distinguish between a person detained without evidence of wrongful conduct and one as against whom criminal charges are warranted.

Instead, the Order is merely another mechanism for the creation of a process, one not subject to meaningful scrutiny by an independent decision maker, through which continued – if not permanent – detention is all but assured.

If the last decade has proven anything, it is that our system of justice that has endured for more than 200 years is not a process that may be disregarded as a matter of expedience. There is to be found nowhere in our Constitution or the moral principles by which we have empowered and guided our democratic institutions such unilaterally decreed and specifically applied exceptions to due process and liberty interests. Guantanamo as a detention facility has been rendered legally irrelevant. But Guantanamo is not an adequate substitute for a judicial process that respects our laws and acknowledges the essential character of fundamental human rights; it is unacceptable, irresponsible, and ultimately unlawful. In that regard, the most recently issued Executive Order is an ill attempt to give cover to a process – indefinite detention without charge – that has rightly drawn opposition by so many, including a bipartisan group of over 140 prominent

Americans with which I have proudly added my voice.

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it
means just what I choose it to mean — neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many
different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s
all.”

— Lewis Carroll (Through The Looking Glass)

Stephen Abraham, Lt. Col., U.S. Army (Ret.), formerly assigned to the Office for the Administrative Review of the Detention of Enemy Combatants, was the first officer to publicly criticize the Combatant Status Review Tribunals at Guantanamo.

Suggested citation: Stephen Abhraham, The Guantanamo Executive Order: Thinly Veiled Injustice, JURIST – Forum, March 30, 2011, http://jurist.org/forum/2011/03/executive-order.php.