I promised earlier that I would describe my exceedingly mixed feelings about the stories today that President Obama is preparing to issue an executive order outlining a Guantanamo review process. As Bobby’s post a few minutes ago pointing out the predictable anxieties about the move on both left and right omitted discussion of any centrist anxieties about it, it left a convenient opening for me to do so.
I say I have mixed feelings because, at one level, this is exactly the policy I have been urging for a very long time and on another level, it implements that policy in exactly the wrong way.
The idea of creating a robust, adversarial review mechanism to review detentions before an impartial decision-maker is long overdue–overdue in this administration and overdue in the last. If detention is going to be a feature of our counterterrorism stragey in the future–and it is–it has to be legitimate. And while the left has staked its all on habeas, habeas is actually a highly imperfect instrument for the job of creating long-term legitimacy. The one-bite-at-the-apple nature of it means that it can be very insensitive to changed circumstances. Having a system of regular review that can examine a wide range of factors beyond the simple lawfulness of a detention makes all the sense in the world. So done right, this could be a big step forward in creating a fair system for detainees and thus also in creating legitimacy for detentions that aren’t going to end any time soon.
All that said, I cannot bring myself to feel easy about bringing such a system about by executive order. This system belongs in statute. It belongs in statute both because Congress should have to stand behind it and because in the long run, a detention system based on an aging AUMF and an executive order is not going to fare as well in court as one based on a clear, explicit, and comprehensive act of Congress. While the left will, as Bobby rightly points out, complain about the “institutionalization” of detention, the real problem is the opposite: An executive order does not do enough to institutionalize the detention in which we are going to be engaged for decades to come. This is a matter that warrants careful institution building by the Congress of the United States–which is to say a move away from unilateral executive action. Ironically, despite the left’s having spent years criticizing such unilateral actions by the Bush administration, human rights and civil liberties groups seem to prefer that Obama get in touch with his inner Dick Cheney than that he do detention properly. I don’t. And I worry that a good policy effectuated by the wrong means will come back and bite us–maybe not immediately, but soon and very painfully.