The Anticipated Executive Order on Detention Review and the Inevitable Criticism from Both the Left and the Right

By Robert Chesney
Tuesday, December 21, 2010, 10:54 PM

Ben beat me to the punch in noting the stories by Dafna Linzer (ProPublica) and Peter Finn and Anne Kornblut (Washington Post) to the effect that the White House will soon announce an executive order creating a new annual review system for military detainees held at GTMO.  I'll comment further once the order is a reality and I've had a chance to see it, but in the interim I want to anticipate and refute a pair of likely criticisms, as the administration is sure to take flak on this from both the left and the right. 

From the left,  look for criticism to the effect that this as "institutionalizing indefinite detention" or something along those lines.  That is, some will argue that this move amounts to further entrenchment of a military detention system that, in their view, is illegitimate and should be eliminated rather than modified--"end it, don't mend it," you might say.  But talk about letting the best (from their point of view) be the enemy of the good (especially from the detainees' viewpoint).  The fact of the matter is that military detention (whether detainees are held at GTMO or elsewhere) is quite thoroughly entrenched and institutionalized as things stand.  The current administration has consistently supported reliance on military detention in at least some circumstances; the courts have repeatedly declared that this option is lawful in at least some circumstances; and Congress, well, suffice to say that the Democratic-controlled Congress of 2009-10 wanted nothing to do with shutting down GTMO, and the Congress of 2011-12 probably will make it look positively shut-down friendly.  Now along comes the administration with a proposal to at least increase the degree of adversariality involved in the annual review process for the many detainees who have lost or eventually will lose their bids for freedom via habeas.  I would think the left could close ranks in support of this, even if some would have to hold their nose while doing so.

From the right, we'll surely see pushback from some against any measure that in any ways does anything to increase the chances that anyone currently held at GTMO might ever walk free, as part of the larger, bogus narrative suggesting that the current administration does not take the terrorist threat sufficiently seriously (nevermind that the last administration released large numbers of detainees from GTMO).  But the notion of strengthening the annual review process--which already exists, mind you, albeit in a less-procedurally-robust form--is the right thing to do, at least stated as a general proposition (we'll see about the eventual details).  The Bush Administration created the annual review system in 2004 at least in part out of recognition that as a matter of policy the government has no interest in continuing to hold individuals who, though legally still subject to detention, are past the point where they pose a threat or have intelligence value.   That has not changed just because the other party is now at the helm.

All that said, what is frustrating about all of this is that it does nothing to speak to more pressing issues associated with detention, such as clarifying the precise substantive boundaries of detention authority (does it apply to independent supporters away from battlefields, for example?) or addressing the question of what becomes of detention authority when the cycle of the U.S. presence in Afghanistan finally catches up to the cycle of the U.S. presence in Iraq (i.e., once we have entirely turned over detention operations to Afghan forces and have declared a shift from a "combat" role to a support/training mission spiked with episodic "counterterrorism" strikes).  Of course, an executive order can't really resolve such questions.  For them, you need legislation.