Thoughts on the Obama Detention Executive Order

By Jack Goldsmith
Wednesday, December 22, 2010, 3:59 AM

I think the proposed EO for periodic review of detainees is a sensible move.  Ben says the EO belongs in a statute “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.”  I too would prefer clear, explicit support from Congress.  But the extra legal oomph of a statute over an EO in this context – in which courts have already without much qualification blessed long-term detention for the GTMO population – is minimal.  And the Obama administration will likely provide more and clearer long-term detainee rights than anything Congress would approve.  Compared to the plausible alternative, the EO is thus likely as good, if not better, than a statute for purposes of enhancing the legitimacy of the GTMO detentions.

The EO also gets the administration over the hump (noted by Bobby) of not wanting to “institutionalize” long-term detention.  I always thought this was an unpersuasive concern.  The administration has been institutionalizing indefinite detention since March 2009 through its habeas litigation strategy, which has produced dozens of detention-supporting judicial decisions.  Yes, an EO puts the President’s name on the policy, but his name has been on the policy since his May 2009 National Archives speech.  Finally, this EO will have implications beyond the four dozen detainees designated by the Obama administration for long-term detention.  All of the nearly 200 GTMO detainees have been held on a military detention rationale under the Obama administration for over two years.  Given the problems with Yemen and the resistance from Congress to trying these detainees in civilian court, this number likely won’t change much soon.

The proposed EO does not address the problem of what I call extra-AUMF threats.  On Sunday Attorney General Holder warned about home-grown terrorist threats not tied to al Qaeda.  (Holder is wrong to suggest that this is a new problem; Attorney General Gonzales warned in 2006 speech (no link) that “the threat of homegrown terrorist cells . . . may be as dangerous as groups like Al Qaeda, if not more so.”)  This is the latest of many recent administration warnings about how terrorist threats independent of al Qaeda – from inside and outside the United States – are growing.  As I have said before, one wonders what authorities the administration is using to meet these growing threats, and whether it will have adequate authorities to detain and interrogate these terrorists properly if captured.  In this regard, the EO – as both Ben and Bobby note – does not address the most serious problem going forward.  It is, rather, a small step in dealing with an old problem.