More On Today’s Executive Orders

Now that I’ve actually read Obama’s Executive Orders on detention (1, 2, 3, 4; the 4th is a pdf), I wanted to highlight a few more points. First:

“The individuals currently detained at Guantanamo have the constitutional privilege of the writ of habeas corpus.”

This was expected, but it’s immensely important nonetheless. It’s also very good that the Guantanamo order puts a lot of emphasis on speed: as it says, the detainees have been there for quite a while now, and deciding what to do with them promptly matters a lot.


“The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.”

This is also incredibly important: no more black sites.

However, my candidate for underreported detail of the day is this, from the same order:

“All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies.”

This matters enormously. First, if the ICRC can visit detainees, it will know how they are being treated. But the fact that the ICRC will know where any such detainees are being held might be even more important. This order says: no keeping ghost prisoners in undisclosed locations. No more prisoners whose families do not know whether they are alive or dead. No making people simply disappear.

I also like the broad language: as I read it, this covers detention facilities operated by contractors as well as US government employees.

One last point: the Washington Post writes:

“Just hours after his inauguration Tuesday, Obama ordered the suspension of all judicial proceedings at Guantanamo Bay under the auspices of the Bush administration’s military commissions system. What is to be done with the prisoners will be part of the review, sources said. Listed options include repatriation to their home nations or a willing third country, civil trials in this country, or a special civil or military system.”

This description of the options in the order is inaccurate. The listed options are: Transfer, Prosecution, and ‘Other Disposition’. The option of ‘transfer’ is described as follows:

“The Review shall determine, on a rolling basis and as promptly as possible with respect to the individuals currently detained at Guantanamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible.”

I can find nothing in the order that limits any release of detainees to “their home nations or a willing third country”. As far as I can see, it just says “release”, period, without specifying or precluding any particular destination. In particular, nothing in the order precludes the release of detainees into the United States.

This matters. If I were in the government of a country that was asked to take in Guantanamo detainees, I’d be a lot more willing to consider doing so if it were clear that the United States was not just expecting everyone else to take care of problems it had caused, without being willing to do its part.

These orders are really, really, really good news to anyone who cares about the rule of law and basic human decency.