An Anxious Thought on the Executive Order

By Benjamin Wittes
Monday, March 7, 2011, 5:14 PM

I could pick nits about the President's Executive Order, but I don't feel like it. The truth of the matter is that this is pretty good policy. There are minor things I might have done differently, but they pale in comparison to what the administration has gotten right here. On a policy level, this is a win.

My one major gripe with the President's Executive Order is that it is, well, an Executive Order, not a statute. I know I sound like a broken record on this point. But I see no good reason why this process should not reside in statutory law. And I worry that the President's failure at the end of the day to--as he so eloquently promised at the National Archive nearly two years ago--"work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution" will make this policy fragile. That is, by marginalizing Congress on this matter, he will spur Congress to impede policy that is essentially sound.

To be sure, Congress doesn't need spurs in its side to act irresponsibly these days. It has not shown itself to be a responsible actor in this space, and the administration's impatience and desire to make policy around the legislature is thus certainly understandable. Nonetheless, I regret it, and I worry that the outcome will be policy far less attractive than that contained in the order itself--and less attractive than the legislative policy the administration might have negotiated had it tried.

This point is intricately related to one that Bobby mentions in his terrific post detailing the key provisions of the order. What is the point of a new review process, he asks, if transfers are all but impossible absent a court order? As Bobby put it,

Absent a habeas order compelling a release, current legislation makes it nearly impossible to effectuate a release from GTMO.  The long and short of it is that the Secretary of Defense must make a series of rather difficulty certifications, arguably impossible to meet in most circumstances.  The hope, presumably, is that Congress will come to its senses sooner or later, and restore the approach it took during the Bush Administration whereby the executive branch was given the flexibility to make these critical judgments.

The question, though, is whether Congress is more or less likely to "come to its senses" having been bypassed on the substance of the review process. I suspect it will be less likely, and since the administration has shown so little spine in standing up to Congress, the result could well be a review process that stacks people up for transfers that Congress persists in forbidding.

Put simply, the President can bypass Congress in issuing this order, but if the last few years have shown anything, they have shown that he cannot bypass Congress in fashioning and implementing detention policy. Eventually, whether he wants to or not, he will have to keep his promise to "work with Congress" to fashion the rules. And if he doesn't, Congress will prevent him from implementing his own.

I say this with no joy. As I said at the outset, I like this policy. It's pretty close to the legislation that I would write if I were the sole member of a unicameral legislature. But what's the point of good policy if you can't effectuate it?