Closing Guantanamo Bay Detention Facility and Prohibiting Torture: The Executive Orders

Law blogs are buzzing over three executive orders that President Obama issued Thursday. The executive orders provide that: (1) an interagency task force must create a plan to close down the Guantanamo Bay detention facility within one year; (2) an interagency task force must develop procedures for detaining "individuals captured or apprehended in connection with armed conflicts and counterterrorism operations"; and (3) all U.S. personnel, including agents with the CIA, must use interrogation standards that comply with the Army Field Manual and the Geneva Conventions.

Interrogation Methods
I am most excited about the order that requires interrogators, including those with the CIA, to comply with the Geneva Conventions and the Army Field Manual, both of which ban the use of torture, including "waterboarding." The approval of torture (which is inhumane and illegal) by the Bush administration was one of its darkest moments. This order, along with the Detainee Treatment Act of 2005, the Geneva Conventions, and the Army Field Manual, establishes a blanket prohibition of torture. The order also requires the CIA to shut down any detention facilities it operates.

Closing Guantanamo Bay
The Guantanamo Bay order is probably the most complicated of all. The order requires that an interagency task force must produce a plan to close the detention facility and that closure must occur within one year. The task force must submit the plan within six months.

So, as many commentators predicted, Obama has moved quickly to "close" the Guantanamo Bay detention facility, but it will remain open for the near future. Also, the order only affects the detention facility, not the military base; nor does it affect other U.S.-controlled detention facilities. The order, however, halts the trial of individuals before military commissions.

What To Do With Detainees?
The order lists several possible paths for individuals who remain detained at Guantanamo Bay when the date of closure arrives. The executive order provides that those persons "shall 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." This language permits the government to place detainees in other military facilities, which probably would not satisfy some civil libertarians who seek either release or detention in federal prisons.

Potential "Loophole": Military Trials Remain an Option
Also, the order does not rule out the possibility of prosecuting detainees in military commissions, rather than in federal courts. Here is the relevant language:

In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution. . . .

The Center for Constitutional Rights has issued a statement which asserts that anything other than a trial in a federal court would "discredit all of the new administration’s efforts in the eyes of the world." While I do not accept this contention (at least not yet), Obama would definitely contradict a campaign promise if he does not utilize federal courts to prosecute suspected terrorists.

No Enforceable Rights
Finally, the executive orders do not create enforceable rights. Instead, they just establish rules of conduct for executive branch personnel. In the absence of action by Congress on this subject, aggrieved individuals cannot sue to enforce these measures or to recover damages for violations.
Related Readings on Dissenting Justice:

Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)

Waffling or Just Filling in the Details: Obama's Statements on Guantanamo Bay Raise Questions