Detention: Law of: Other

Denniston on the Detention Review Order: An Attempt to Expand Detention Authority?

By Robert Chesney
Monday, March 7, 2011, 11:50 PM

I expected that today's Executive Order would be criticized in some quarters on the ground that the status quo should not be further institutionalized in this way (a position that is, in my view, the very definition of letting the best be the enemy of the good, from the perspective of those who would prefer there to be no military detention at all for the GTMO detainees).  What I did not expect was that some would describe the voluntary adoption of this layer of additional restraint as, instead, an attempt to assert newly-expanded detention authority.  Remarkably, hoewver, that seems to be the primary claim in Lyle Denniston's piece today at SCOTUSblog.  Here is what he writes:

Without asking Congress for any added power, President Obama on Monday claimed authority for the military to hold as prisoners any terrorism suspect whose detention is deemed “necessary to protect against a significant threat to the security of the United States,” even without pursuing criminal charges.  That will include detention at Guantanamo Bay, and at any other “detention facility” the government sets up. The detention power, however, may be checked by the civilian courts as they decide habeas challenges to continued detention by those at Guantanamo Bay, the President conceded. ... The President relied upon his constitutional powers as Chief Executive, and on the 9/11 Resolution that Congress passed after the 2001 terrorist attacks.  While asserting that the new approach “does not create any additional or separate source of detention authority,” the steps he announced for review of those the government insists on holding amount to an ongoing, indefinie detention policy without necessarily bringing criminal charges against any individual, either in civil court or before a military commission.  

This is sure to mislead some readers.   The quoted language suggests that the EO asserts detention authority beyond the status quo; in particular, it suggests to the unwary reader that the government now claims authority to detain anyone who might pose a "significant threat to national security," full stop.  To be sure, there is a strangely-grudging reference in the third sentence to the possibility that habeas review will perform some kind of checking function via habeas, but one who does not follow these matters would not guess from the post that habeas review entails judicial enforcement of a baseline detention standard that remains unchanged by today's order: i.e., the understanding that the AUMF authorizes the government to hold only members of AUMF-covered groups (and possibly also those who provide support to such groups, though both the executive branch and the courts seem conflicted on that latter point).  Simply put, the only plausible description of today's EO is that it imposes an additional requirement pursuant to which even a person lawfully detained under the AUMF standard should nonetheless be released absent reason to believe that continuing to hold the person is necessary from a security perspective. 

Having said that, I note that in a later paragraph Lyle advances a distinct argument:

While the President stressed that the new review process gives detainees more procedural rights than they formerly had, under a Pentagon review system that the Supreme Court in 2008 found to be an inadequate substitute for habeas challenges, the new system almost certainly will be challenged in civilian federal court as an unconstitutional mode of indefinite detention.   While there is the theoretical possibility that a civilian court might grant a habeas release order for any detainee at Guantanamo, a series of rulings by the D.C. Circuit Court have sharply curtailed the power of federal District Court judges to order actual release and have enhanced the strength of the government’s reasons for holding terrorism suspects.  Thus, lawyers for detainees facing prolonged detention without prosecution predictably will claim that the Constitution does not allow such Executive detention.

I don't agree with that assessment of the Circuit's work, to say the least, but I have no objection to the propriety of Lyle arguing that habeas has been watered down too much in recent decisions (this argument comes up frequently in Lyle's coverage of habeas litigation).  I just don't see what today's EO has to do with this, in any direct sense.  Lyle's critique of the habeas caselaw is as good (or bad) today as it was yesterday, with or without the EO, or so it seems to me.

[Addendum: I'm sorry to see that the Washington Post puts a similarly misleading description into the opening sentence of its article on the new EO, inexplicably stating that the EO "will create a formal system of indefinite detention."]