Obama Approves Indefinite Detention For Guantanamo Bay Detainees

Obama has signed an executive order that approves indefinite detention for Guantanamo Bay detainees. Although Obama campaigned on promises to close the facility and to end indefinite detention, the executive order he signed authorizes the opposite.

Dissenting Justice has previously reported on the various ways in which the Obama administration has continued policies of the Bush administration, including indefinite detention, that liberals vocally criticized. This does not make Obama a bad president; instead, it should convince liberals not to believe everything that politicians promise while campaigning -- even if that politician is more appealing than others.

When Will Obama Close the Guantanamo Bay Prison, Part II

A Dissenting Justice essay published on May 16, 2009 asked the question: "When Will Obama Close the Guantanamo Bay Prison?" The essay asserted that Obama's timeline for closing the facility by January 2010 might not come to fruition because lawmakers and the public opposed moving detainees to the United States. Also, the administration was preparing to retain the military tribunal system created during the Bush administration, which would obviate the need to move detainees to the United States. Furthermore, a review of the facility commissioned by President Obama had concluded that it did not violate human rights law. Accordingly, I suspected that Obama might not meet his deadline for closing the disparaged facility.

Recent developments are causing commentators to wonder again when Obama will close the detention center. In particular, opposition to moving detainees persists, and an Illinois site chosen as a relocation center will probably not be in shape to house detainees for several more months. Some lawmakers believe that the administration will not shutter the prison until late 2010 or early 2011.

For a fuller discussion of the issue, see: Guantanamo prison may have to stay open until 2011.

When Will Obama Close the Guantanamo Bay Prison?

Now that the Obama administration has confirmed that it will retool and revive that controversial military tribunals to prosecute terrorism suspects, one glaring question remains: When will Obama close the Guantanamo Bay prison? During his first week in office, President Obama issued an executive order that directs a team of experts to devise a plan to close to prison by January 2010. The revival of the military courts, however, complicates this issue.

Many Legal Issues
Even though Obama's January executive orders included a carefully worded loophole that contemplated the possible use of military courts, his decision to use the tribunals has angered civil libertarians. Most of the progressive voters in the Democratic Party lambasted Hillary Clinton, whom they believed offered "more of the same," and they constructed Obama as a leftist dream come true.

Although progressives exaggerated Obama's leftist credentials, he offered enough teasers to win their trust. For example, Obama's campaign disparaged the use of military courts and repeatedly praised the ability of the ordinary federal courts to prosecute terrorism suspects. As a good lawyer, Obama left room for the possible use of reformed military courts, but this qualification certainly was not the loudest element of his campaign.

Thus far, Obama's proposed reform of the military courts does not seem to make dramatic changes over the previous system used by Bush. Although Obama says he will limit the use of hearsay evidence to situations where the court concludes it is "reliable," Bush used the same standard. Under Bush's rules, however, the burden rested with the defendant to disprove the reliability of hearsay evidence; Obama's reform would place the burden on the government. Nevertheless, if the military courts use a low standard to evaluate the reliability of hearsay evidence, then this "reform" might not differ much at all from the old system.

Obama has also stated that the new rules will not permit the use of evidence collected through torture and other abusive methods. According to an article published by the Associated Press, however, Bush never relied upon tainted evidence to prosecute individuals, even though his rules authorized him to do so.

No Prosecutions in the Near Future
Regardless of the ultimate content of Obama's new procedural rules, the military courts will probably not become operational in the near future. In fact, Obama will soon order an additional 120-day freeze on proceedings in the military tribunals. The original stay will expire on May 20.

Before any prosecution can occur, the President must spell out the reforms he wishes to make. Also, Congress needs to pass legislation implementing the changes. Furthermore, courts must preside over the inevitable litigation challenging the constitutionality of the Obama's military tribunals. These factors will likely result in a considerable delay in the use of the military tribunals.

Possible Impact on Guantanamo Bay Closure
While the legal process concerning the military tribunals takes place, the deadline on Obama's promise to close the Guantanamo Bay prison could expire. Although the president could extend the time period for closing the facility, he might also consider abandoning the closure plan altogether.

Both Obama and Secretary of Defense Robert Gates have stated that some detainees that the government deems "dangerous" are unsuitable for transfer to other countries and are too risky for prosecution (due to insufficient evidence). An overlooked provision (Section 4(c)4) of Obama's executive order regarding Guantanamo Bay anticipates this category of detainees.

In March, the Washington Post reported that officials in the Department of Justice were considering whether to "create a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." At the time, this concept seemed vague, but recent media reports indicate that the government will likely seek to detain these individuals indefinitely, adhering to another one of Bush's most criticized policies. Furthermore, the revival of the military tribunals means that the government has decided not to limit prosecution to "regular courts," as the Washington Post article suggests.

Members of Congress, however, do not want terrorism suspects prosecuted or detained within the United States. If Congress wins this battle, then Obama must continue to hold the detainees at Guantanamo Bay or at another United States-controlled facility located outside of the country.

Although Obama has promised to close the Guantanamo Bay detention center, he could later revisit this decision. Earlier this year, the Department of the Navy completed a study, ordered by Obama, which found that the Guantanamo Bay prison complies with the Geneva Conventions. Although many civil liberties lawyers dispute this finding, Attorney General Holder subsequently visited the facility and gave it a favorable review as well. Due to the constraints that Obama now faces, a decision to keep the Guantanamo Bay prison open beyond January 2010 (or even longer) does not seem completely "off the table."

51 House Democrats Vote Against Obama's Supplemental War Funding Request

RELATED COVERAGE:

They're Baaack. . . .

Kinder, Gentler Military Tribunals? You Betcha. . . .
___________________________________________________________________

Fifty-one House Democrats voted against President Obama's request for additional money to fund the wars in Afghanistan and Iraq. The supplemental spending measure, H.R. 2346, allocates $81.3 billion for war-related expenditures and $15.4 billion for various other projects, including military construction and flu preparedness. Despite opposition among Democrats, the measure passed by a vote of 368-60. Nine Republicans also voted against the spending bill.

Many members of Congress have expressed concern that Obama's supplemental spending requests could fund the transfer of Guantanamo Bay detainees to the United States. According to recent news reports, the Obama administration is considering transferring certain Guantanamo Bay detainees to the United States for detention.

In late April, Secretary of Defense Robert Gates stated that between 50 and 100 detainees were too dangerous to release and too risky to prosecute (due to lack of admissible evidence). Rather than releasing the detainees or risking an acquittal (which would lead to a release), the government could possibly detain the individuals indefinitely, a move that would likely cause more tension between Obama and his liberal base.

In light of political opposition to the transfer of suspected terrorists to the United States,the House measure contains an amendment that precludes the use of the allocated funds to facilitate the relocation of inmates from Guantanamo Bay to points in the United States unless the President first submits a report to Congress detailing the national security impact of locating the transferees in the United States. The measure also requires the President to submit a general report on the disposition of each detainee later this year.

Roll Call
The Democratic "nays" include: John Conyers, Barney Frank (7 out of the 10 Massachusetts House Democrats voted against the measure), Luis Gutierrez, Dennis Kucinich, Barbara Lee, John Lewis, Zoe Lofgren, and Maxine Waters.

Change Alert: Indefinite Detention in the USA -- Not Guantanamo Bay

In late April, Secretary of Defense Robert Gates announced during a Senate briefing that there are between 50 and 100 detainees at Guantanamo Bay whom the government would not transfer to other countries or prosecute in civilian or military tribunals. Last week, major media outlets, confirming previous "chatter," reported that the Obama administration would retool and revive the highly disparaged military courts.

And just when it seemed that all of these changes in anti-terrorism policy were too good to be true, today's Wall Street Journal reports that the Obama administration might indefinitely detain some Guantanamo Bay inmates in the United States following the closure of the facility. Presumably, the indefinitely detained individuals would include the 50-100 people Gates described in late April.

The Senate, however, has already launched an effort to block the potential policy. Today, the Senate will consider legislation that would give Obama emergency money he has requested to fund the closure of the Guantanamo Bay prison. The legislation, however, would grant the funds only if the President agrees not to transfer any suspected terrorists to locations within the United States.

If the Senate measure fails, then the Obama administration could potentially implement the indefinite detention policy. According to the Wall Street Journal article, possible plans include indefinite detentions within the United States authorized by a newly created "National Security Court."

The use of a special National Security Court to determine whether the government could detain suspects would go against Obama's campaign assertion that these individuals should have full habeas corpus rights. The idea of indefinite detention contradicts his campaign rhetoric that condemned this practice.

Dissenting Justice has frequently commented on the Obama administration's commitment to indefinite detention, despite the Left's vehement opposition to the practice. Even the mainstream media has begun reporting on how Obama's policy choices either anger the Left or defy his campaign promises. Two articles in today's Washington Post, for example, examine how Obama's recent flip-flop on the release of detainee abuse photos might impact his relationship with his liberal base.

Concluding Questions
If Congress blocks the transfer of Guantanamo Bay detainees to the United States, will Obama stop the process of closing the facility? Was this the plan all along? How does the indefinite detention of terrorism suspects in the United States, as opposed to Guantanamo Bay, represent an improvement over the Bush administration's policies?

Recent Articles on Dissenting Justice:

Earth to GOP: Branding Democrats as "Socialists" Is a Stupid and Futile Move

President Obama: Less Talk, More Action on GLBT Rights Issues!

Promises, Promises. . .

Obama Administration Will Appeal Court Ruling Which Allows Habeas Petitions for Certain Captives in Afghanistan

The Obama administration has announced that it will appeal a recent Federal District Court decision, which held that three captives at Bagram Air Force Base in Afghanistan could challenge their status as "enemy combatants" in United States courts. The District Court held that the Supreme Court's ruling in Boumediene v. Bush, which allows Guantanamo Bay detainees to file habeas corpus petitions, also gives Bagram detainees access to United States courts. The Obama administration opposes the petitions and has announced that it will appeal the District Court's ruling.

Civil liberties advocates blasted the Bush administration for subjecting Guantanamo Bay captives to indefinite detention and for denying them access to federal courts. The outrage over Guantanamo Bay among President Obama's liberal base and among the populations of certain United States allies (particularly in Europe) probably explains why President Obama's first set of executive orders included a provision directing the closure of the controversial detention facility.

The Obama administration, however, has taken the position that Supreme Court's reasoning in Boumediene does not confer habeas rights to Bagram detainees. This is the same argument that the Bush administration made.

This logic, however, could support the capture and transfer of individuals to Bagram, where they could face prolonged and indefinite detention and denial of access to United States courts. Bagram could become the functional equivalent of Guantanamo Bay.

Even though Bagram differs from Guantanamo Bay because Afghanistan (unlike Cuba) is the site of a war, the particular detainees subject to the District Court's ruling were allegedly captured outside of Afghanistan and taken there for detention. Supreme Court precedent, however, has allowed the government to deny habeas rights to individuals detained in the "theater of war." The District Court, however, held that the government could not prevail under this exception because its own conduct and decisions placed the petitioners within the vicinity of a war.

The Constitutional Law Blog has more coverage of the legal issues.

NIMBY Politics and Guantanamo Bay Detainees

According to the Washington Post, the Obama administration may transfer some Guantanamo Bay Detainees to federal prisons in New York and Virginia to stand trial for acts of terrorism. The plan would undoubtedly set off very passionate NIMBY ("not in my back yard") politics. In the past, however, the United States has prosecuted terrorism suspects in New York and Virginia, and some of those individuals are currently serving sentences at a high security prison in Colorado.

Federal officials from Homeland Security, the FBI, CIA, Department of Justice, and the Department of State will review files of the remaining 241 Guantanamo Bay detainees. The review process will determine "whether to prosecute inmates in federal court, transfer them home or to third countries, or possibly resettle some of them in the United States."

Human Rights Groups Will Probably Get a "Mixed Bag"
Human rights groups have insisted that individuals detained in the war against terrorism receive access to ordinary civilian courts. They have challenged the use of military courts and indefinite detention of suspects.

While members of the Obama administration have expressed a preference for using federal courts when possible, they have not eliminated the possibility of creating "a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." "A new system of detention" is a vague concept, but it does not sound like an idea that complies with the demands for justice that human rights groups have made with respect to Guantanamo Bay.

No Kicking and Screaming Yet. . .

[Another recent post: Silly Me: Opposition to Earmarks Is "Last Year's Business" ]

Washington has its traditions just like any other city. But unlike other places, Washington is the home of the second-oldest profession: politics. This makes the city impervious to demands for change -- especially change that strikes at the core of its deal-based political culture. And while the 2008 election promised "change" at all levels, signs of "business as usual" remain abundant.

Mo' Money, Mo' Problems!
Earmarks
Last week, the House passed an omnibus budget that contains billions of dollars in earmarks proposed by lawmakers in both parties. Several members of the Obama administration, including Obama himself, have sponsored earmarks which appear in the proposed budget.

During his presidential campaign, however, Obama routinely condemned earmarks. His opposition to earmarks led to the media's obsession with Alaska's so-called "Bridge to Nowhere," which Democrats said proved that Sarah Palin engaged in double-talk on fiscal conservatism. Recently, after fiscal watchdogs began publicizing the volume of earmarks in the proposed budget, Obama scrubbed his name from a multi-million dollar earmark that previously designated him as a co-sponsor. The earmarks, however, remain in the bill. Members of Obama's staff have defended the inclusion of earmarks in the budget on the grounds that the concern over pork spending was "last year's business."

Lobbyists
Lobbyists are another staple of Washington's political culture. Obama campaigned on a pronounced anti-lobbying theme, and after he was elected, he immediately implemented rules that prohibit former lobbyists who join the government from shaping policy on issues related to their previous work. But Obama immediately ignored his own rules in order to appoint William Lynn as Assistant Secretary of Defense.

He was also presumably set to waive the rule (or at least ignore the spirit behind it) for Tom Daschle, his original pick to head the Department of Health and Human Services. Although Daschle ultimately withdrew from consideration over controversy surrounding unpaid taxes, some critics also complained that he had earned millions of dollars representing and providing advice to insurance companies and that he was a trustee of the Mayo Clinic. Daschle, however, was not formally registered as a "lobbyist."

In addition, as a campaigner, Obama promised transparency and accountability on health care reform, but lobbyists for insurance companies and other groups have held private meetings with Senator Ted Kennedy to discuss the issue before the public debates. According to the L.A. Times:

As a presidential candidate, Barack Obama said that in overhauling healthcare he would make the negotiations public, and even invite C-SPAN to air the talks on television.

Yet in recent months, lobbyists and health insurance company representatives have been meeting behind closed doors -- with the White House's knowledge -- in the office of Sen. Edward M. Kennedy (D-Mass.) to debate options for a new health system.

As Chair of the Senate Committee on Health, Education, Labor and Pensions, Kennedy will have a large role in shaping health care reform. As usual, lobbyists are directing their attention to the appropriate persons.

Improving "Our" Image in the World
Obama's supporters promised that his election would repair the image of the United States in the world community, which, they contend, Bush's militaristic practices and abusive antiterriorism policies severely damaged. A combination of legal strategy, politics and policy considerations, however, have caused Obama to retain many of the same Bush-era practices or legal positions that liberals believe injured the country' reputation. These policies include rendition, blanket usage of the state secrets privilege, the openness to "harsh" interrogation methods "if necessary," support of indefinite detention of Al Qaeda suspects, and the right to bypass federal courts to prosecute certain detainees.

Moving or Closing Guantanamo Bay?
Although Obama promised substantial changes in these areas, to date, the differences relate more to form, rather than substance. For example, although Obama has ordered the closure of the Guantanamo Bay detention center, the Navy has produced a study, at the president's request, which concludes that the facility complies with the Geneva Conventions. Although some human rights advocates condemned the Navy's report, Attorney General Eric Holder subsequently visited the facility and offered favorable reviews as well.

Obama promised to close Guantanamo Bay in response to sharp criticism among domestic and international human rights activists who argued that the Bush administration unlawfully detained captives, denied them access to courts, and subjected them to torture. The Supreme Court concluded that detainees at the facility had a right to judicial review of their detention and, subsequently, that procedural deficiencies in military commissions authorized by Congress made the commissions an impermissible alternative to federal courts.

Although the President has ordered the closure of the facility, the government will likely send many present and future detainees to Bagram Air Force Base in Afghanistan (and to other locations). The Obama administration, following Bush's lead, contends that detainees at Bagram do not qualify for access to the federal courts. Also, Holder and Solicitor General Elena Kagan stated during their confirmation hearings that the United States can indefinitely detain suspected members of Al Qaeda (whether or not they were caught on the battlefield, according to Kagan). If the President acts upon the broad authority his staff claims he possesses, Bagram could easily become the functional equivalent of Guantanamo Bay.

Governing in Prose
During the Democratic Primaries, Senator Hillary Clinton attempted to explain why she believed her "on the ground" approach was better in a president, even though members of the media and millions of Democrats preferred the "excitement," energy, and crowds of Obama's mammoth rallies. Clinton, quoting former New York Governor Mario Cuomo, reminded voters that: "You campaign with poetry, but you govern with prose."

At this point, it is unclear whether even solid prose and policy could alter the power of lobbyists and the impulse for members of Congress to secure earmarks. It is abundantly clear, however, that the wave of excitement that shaped the 2008 election has not transformed Washington into a place that welcomes substantive reform. As Sheila Krumholz, Director of the Center for Responsive Politics, tells the L.A. Times:

"I don't think anyone who is familiar with the way Washington works was under any illusions about the ease in doing this. . . .It's very different to make promises on the campaign stump than it is putting together an administration and running a government. . . . I don't think it's a given that it's possible to change the culture of Washington."

I wholeheartedly agree with Krumholz's assessment. There's an old saying about change-resistant people going into new situations "kicking and screaming." But things look so remarkably the same around Washington that even the most stubborn adherents of the status quo have not even begun preparing either to kick or scream. They are definitely engaging in partisan whining and bickering, but that is so yesterday.

Another recent post: Silly Me: Opposition to Earmarks Is "Last Year's Business"

Correction: Please note that the description of the size of the "earmark" that Obama sponsored has been edited for accuracy.

GITMO: Why Is Obama Closing Such a Professional, Lawfully Run Facility?

Before his inauguration, President Obama announced that once he took office he would immediately start the process of closing the Guantanamo Bay detention center. The detention center has received deep criticism from domestic and foreign human rights advocates, civil liberties activists, and from liberal politicians. Many commentators have argued that Obama's election will allow the United States to move beyond its damaged global reputation because Obama will remedy civil liberties violations and end practices such as indefinite detention, "harsh" interrogations, and other procedural harms that gave Bush and the country a bad reputation in many parts of the world.

During his first week in office, Obama lived up to his promise and issued an executive order which requires the closure of the Guantanamo Bay detention center within one year. But the administration's position regarding the detention center has evolved tremendously this week as a result of two major developments.

First, Admiral Patrick Walsh of the Navy completed a review of the facility, which Obama commissioned. The Walsh report concludes that the detention facility complies with the Geneva Conventions. Walsh makes minor recommendations for improving the lives of detainees, such as giving certain "dangerous" individuals more outdoor recreation time. Human rights activists have condemned the report.

Second, Attorney General Holder has just completed a tour of the facility, and he also gives it a favorable review. Holder says that he is "impressed" by the "professionalism" of the staff at the facility. Holder also says that he did not witness any mistreatment of detainees. Instead, Holder says that he "saw a conscious attempt by those guards to conduct themselves in an appropriate way." Perhaps a visit by the Attorney General of the United States caused them to exhibit their best behavior. Everyone wants to impress the boss (or the boss's lawyer), right?

Question: If the Guantanamo Bay detention center is legally and professionally run, why is Obama closing it? I suspect that the decision to close the detention center has a lot to do with the president's campaign promises and the utter contempt that many liberals have for the facility.

But the decision to close the center could also form part of a broader strategy to send detainees to Bagram Air Force Base in Afghanistan where, arguably, they would not qualify for habeas corpus (like Guantanamo Bay detainees). The Obama administration has already embraced Bush's position that detainees at Bagram are not entitled to habeas corpus and that the government can try them in military commissions. Also, Holder and Solicitor General Elena Kagan have both argued that the United States can indefinitely detain Al Qaeda suspects, regardless of whether they were caught on the battlefield. CIA Director Leon Panetta has also said that the CIA will continue the practice of rendition, a program which transfers individuals to other countries without the formal procedures associated with extradition. Combining all of these powers, Bagram could end up becoming Obama's GITMO.

Much Ado About Nothing? Liberals Absolutely Ecstatic Over Return to Pre-Bush Status Quo

Yesterday, three news stories captured my attention, not so much because of their content, but because of some liberals' reaction to them. The first story covered Obama's promise to lift the so-called "Global Gag Rule," a Bush-era executive order that prohibits foreign recipients of federal money from performing abortions, counseling women about abortions, or from advocating less restrictive abortion policy in their home countries. The second story involves Obama's issuance of a series of executive orders which mandate the closure of the Guantanamo Bay detention facility, prohibit U.S. interrogators from using torture, and create a task force to devise an alternative plan for the detention of war and anti-terrorism captives. The final story reports the Senate's passage of the Ledbetter Fair Pay Act, which, if enacted, would reverse a Supreme Court ruling that requires usage of a more restrictive statute of limitations analysis in employment discrimination cases.

Blissful Liberal Response
Some liberals have responded blissfully to these reports. On Alternet.Org, for example, an article describes Obama's reversal of the Global Gag Rule as evidence that he has already begun "mopping up Bush's misogynistic mess." With respect to the detention and torture developments, the ACLU has a link on its website that permits readers to: "Thank Obama For His Bold First Steps!" And news that the Ledbetter bill could soon become law has sent my pals at Daily Kos into a state of complete euphoria and has many of them advancing the "good Democrats" versus "evil Republicans" narrative.

Pleased -- Not Ecstatic
Let me clearly state what regular readers of this blog should already know: I completely agree with all of the policy changes that have taken shape in recent days. In my scholarship and teaching, I have criticized anti-choice policies, deprivations of due process, and strict rules that toughen the ability of victims of unlawful discrimination to receive justice. Accordingly, I welcome these shifts in policy.

Using Bush's Policies As Baseline to Measure Change Can Limit Progress
Although I support these policy developments, they do not send me leaping around with excitement because they simply restore the legal status quo that existed prior to the Bush administration, which began just eight years ago. And while I view these policies as a "positive" turn, they can only represent a radical advancement if we accept the Bush administration's policies as the baseline for measuring change.

Using Bush as the Baseline Obscures the Fact That His Policies Departed From Past Practices
I strongly encourage liberals to reconsider treating the reversal of Bush's abhorrent polices as a monumental shift in U.S. political culture and ideology. While describing the significance of recent (and future) policy changes in very dramatic terms can further the political interests of Democrats, the political campaigns have ended. Also, my commitment to justice far exceeds my commitment to any political party -- and if the two diverge, I will certainly choose justice over party politics. And while many younger voters probably view "anything but Bush" as a tremendous advancement, their limited experiences do not change that fact that the types of policies that Obama has recently implemented and proposed were once standard practice.

Using Bush as the Baseline Can Curb Liberal Demand for "Real" Monumental Change
I fear that by treating "new" policies that restore the pre-Bush legal terrain as Earth-shattering developments, we risk lowering our expectations and settling for less progressive change. Merely reversing Bush could become the "ceiling" or ultimate aim for liberals. Many liberals -- especially younger ones who lack a knowledge of history -- could become content so long as U.S. policies mirror those of 1999. Although a return to the pre-Bush past would represent a shift in policy, we should demand deeper changes before we enter a state of euphoria.

The Pre-Bush Status Quo Was not Perfect
The fact that the pre-Bush "liberal" status quo was not perfect should also cause liberals to demand greater reform and to approach this new era with caution and vigilance. For example, while the proposed Ledbetter legislation restores the older, more flexible rule for calculating the statute of limitations period, it does not alter the utterly short time period (six months) for bringing a claim, nor does it alter the legal standards for proving discrimination that have hindered plaintiffs' ability to succeed on their claims. The House version of the Ledbetter statute includes a host of procedural and substantive reforms that could benefit civil rights plaintiffs and represent real progress over the Clinton era. The Senate version, however, omits those changes, and it appears that House Democrats will compromise and agree to eliminate their more progressive provisions.

Furthermore, while liberals celebrate the fact that foreign organizations that receive U.S. financial assistance can once again perform and counsel women regarding abortions (just as they did during the Clinton administration), domestically, the federal government and most states exclude abortion services from government-sponsored health plans. It is unclear whether Obama will try to reverse this policy as he implements health care reform. But it is absolutely clear that he will not try to reverse this widely desired policy if liberals, content with the restoration of old rules, do not even float the possibility of this forward-looking change. Some reproductive rights groups "get it" and have pushed Obama on this issue.

Although reversing Bush's bad policies represents change, simply restoring the pre-Bush past does not excite me. Treating the reinstatement of pre-Bush policies as a monumental shift risks making this the sole aspiration of liberals and other reform-minded individuals. A cautious approach, by contrast, could place the nation's leaders on notice that voters want deeper reform, and it could educate younger voters who experience these limited "changes" as novel and radical.

Related Readings on Dissenting Justice:

Cheerleading for Ledbetter Law Drowns Out Discussion of More Progressive Pay Equity Measure

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

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

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

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

Recent statements by Obama which suggest he will take a cautious approach to closing the Guantanamo Bay detention facility have led some observers to accuse him of backpedaling on the subject. During the Democratic primaries and in the general election campaign, progressives frequently cited to Obama's promise to close Guantanamo Bay in order to portray him as the candidate who would do the most to repair the image of the United States in world affairs.

Obama's Campaign Rhetoric on Guantanamo Bay
During his campaign, Obama promised that he would make closing the facility a priority of his administration. The following language taken from a brochure on BarackObama.Com details his position on the subject:

Guantanamo has become a recruiting tool for our enemies. The legal framework behind Guantanamo has failed completely, resulting in only one conviction. President Bush’s own Secretary of Defense, Robert Gates, wants to close it. Former Secretary of State Colin Powell wants to close it. The first step to reclaiming America’s standing in the world has to be closing this facility. As president, Barack Obama will close the detention facility at Guantanamo. He will reject the Military Commissions Act, which allowed the U.S. to circumvent Geneva Conventions in the handling of detainees. He will develop a fair and thorough process based on the Uniform Code of Military Justice to distinguish between those prisoners who should be prosecuted for their crimes, those who can’t be prosecuted but who can be held in a manner consistent with the laws of war, and those who should be released or transferred to their home countries.

Obama made similar statements in a speech on foreign policy that he delivered in August 2007:

I also will reject a legal framework that does not work. There has been only one conviction at Guantanamo. It was for a guilty plea on material support for terrorism. The sentence was 9 months. There has not been one conviction of a terrorist act. I have faith in America's courts, and I have faith in our JAGs. As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.

Progressives Banked on Obama to Close Guantanamo Bay
As they did on many issues, progressives promoted Obama as the better candidate on this issue, even though both he and Hillary Clinton promised to shut down the detention facility (see Clinton statement). In January 2008 -- one week prior to Super Tuesday -- several prominent lawyers who represent detainees at Guantanamo Bay wrote an open letter endorsing Obama.

The letter does not mention Clinton by name, but it distinguishes Obama from other "some politicians" who "are all talk and no action." It also states that "America needs a President who will not triangulate this issue" and that Obama would certainly keep his word "because he truly feels these issues in his bones."

Although it speaks in code, the letter clearly attacks Clinton. During the Democratic primaries, the Left derided Clinton as someone who was insincere and untrustworthy and as someone who, rather than feeling issues "in her bones," simply takes positions to get elected. Also, "triangulation" is synonymous with leftist hatred of the Clintons.

Obama's Most Recent Statements on Guantanamo Bay
During a recent interview on ABC's This Week, Obama took a cautionary approach that differs from his campaign statements which describe closing the facility as "the first step" towards repairing the nation's image in the international community. Obama refused to commit to closing facility during his first 100 days in office. Instead, his comments suggest a more drawn out process of winding down operations. And rather than portraying the facility as a complete failure, he suggests that that the interrogations at Guantanamo Bay, lawful or otherwise, may have actually helped the United States identify and secure terrorists. Here is Obama's full statement:

It is more difficult than I think a lot of people realize and we are going to get it done but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it's true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo American legal system, by doing it in a way that doesn't result in releasing people who are intent on blowing us up. . . .

That's a challenge. I think it's going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do. But I don't want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our constitution. That is not only the right thing to do but it actually has to be part of our broader national security strategy because we will send a message to the world that we are serious about our values.

Waffling or Just Providing the Details?
So, is Obama waffling as some progressives argue, or is he simply providing the details concerning a broad promise to close down the facility? I believe that both things are at play. Obama's campaign statements about Guantanamo Bay do not describe a complicated process that will take into consideration a plethora of factors that make shutting it down more difficult than most people realize. Instead, they make closing the facility the "first step" towards repairing the nation's international reputation.

Also, while Obama's earlier statements emphasize the need to adhere to the Geneva Convention and to rely upon federal courts to try terrorists, he now indicates that he will need to balance his reform with the fact that "tainted evidence" nonetheless indicates the guilt of some detainees. But if Obama wishes to prosecute alleged terrorists in federal courts, then the use of tainted evidence will prove difficult (especially if by "tainted," Obama means the evidence was obtained through coercion).

Although Obama's recent statements with respect to Guantanamo Bay are in fact much more guarded and nuanced than what he said during his presidential campaign, progressives must accept responsibility for uncritically assessing his political rhetoric. Progressives tried to turn Obama's campaign message of change into a leftist social movement. They believed that his success meant the country had become more liberal and that Obama would have a tremendous amount of deference to implement his campaign promises.

Progressives constructed Obama as the "change they had been waiting for," rather than someone who would deliver centrist and triangulating politics. But, as I have argued before, an election is not a social movement. Although social movements use elections in order to place their messages in public discourse and to secure political support for their agendas, elections alone do not create or even necessarily indicate the possibility of social change.

Regardless of whether Clinton or Obama won, progressive social movements would have to engage in activism to secure the implementation of liberal reform. Apparently, some progressives have only recently begun to understand this reality. The use of progressive symbolism by Obama's campaign led many leftists to believe that he alone could bring progressive reform. But once the poetry and emotion of a campaign subsides, governing truly happens in prose. For failing to accept this earlier, progressives must blame themselves.

Related Readings on Dissenting Justice:

If Obama Emulates Lincoln, Will Progressives Follow Abolitionists and Radical Republicans?

2008 Is Not 1964: Why Liberal Mania and Conservative Panic Are Nothing But Melodrama

Chicken Little Politics: Moderate Obama Causes Progressive Panic

Progressives Awaken from Obama-Vegetative State

Governing In Prose: Obama's Cabinet Picks Defy Campaign Narrative That Emphasized "Hope," "Change," and "Washington-Outsider" Status