Pres. Obama today issued an executive order to begin the closure of the Guantanamo Bay camp. What exactly it means really remains to be seen. The order says that the camp is to be closed within a year; it stops all pending military commission proceedings and bars any further such proceedings, pending a review of each individual detainee. That review will be conducted by a committee chaired by the Attorney General, the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff, and possibly others to be identified later.
This committee will review the cases to determine “whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States.” Those who cannot be “transferred” or released will be subject to further evaluation to determine “whether the Federal Government should seek to prosecute the detained individuals…including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution.” Anyone that the review committee decides cannot be “transferred,” released, or tried, will be subject to “disposition” by “lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice.”
What, exactly does “transfer” mean? It means they will be “returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.”
We obviously have to wait for further implementation of policies with regard to Guantanamo Bay, but it’s important to note just how limited this executive order really is. All that it promises to do is to close the particular facility at Guantanamo Bay. It does not in any way promise to end the policy of keeping detainees in prison camps for long periods of time without judicial review, habeas corpus, or opportunity to seek counsel. This Order sets up a two-step review process, by a committee entirely chosen by the President and subject only to his absolute authority, whose proceedings are not made public, at whose proceedings a detainee is not apparently entitled to counsel, and whose decisions appear to be subject to no appeal process whatsoever. Of course, the Order is quite explicit that it “does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States.”
The committee is free to decide whether it is possible to transfer or release the individual, and, if not, whether it is “feasible” to prosecute such persons. If not, then the committee is not compelled to release such persons, or even to disclose what is to be done with such persons—instead, the committee will “select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals.” Of course, what does “lawful means” actually refer to? The previous administration, of course, considered all of its means to be “lawful” also.
In short, in terms of closing of Guantanamo Bay, today’s Order does little except to close down that particular physical facility and transfer the detainees elsewhere—possibly to American facilities overseas; possibly to allies whose rules do not forbid torture.
Just to be clear: I believe the Guantanamo Bay camp to be totally unconstitutional, and the length of the detention of some of the prisoners there to be absolutely unjustifiable. I think the camp should be closed—and I simultaneously recognize that this is not something that can be done overnight, and should not be done overhastily, given the national security consequences. But realism (a quality notably lacking in some of Obama’s fans) requires us to keep in mind that this order takes only the most meager step, if that, toward actually addressing the constitutional concerns related to indefinite detentions without trial. It does not end indefinite detentions, and it does not require trials. It does not provide counsel, and it does not provide enforceable rights. It does not set meaningful deadlines, and it does not provide oversight. It is subject to no checks and balances, and it provides no enforcement mechanism. It can hardly be said to do anything at all, so far.