A Grammar Lesson: Obama’s Executive Order on Indefinite Detention

I hate to be pedantic, but a number of people are misreading Obama’s Executive Order on indefinite detention, with the result that they present the order as much less troublesome than it actually is. Here’s one example, from Ken Gude:

There is now a clearly articulated standard for continued detention; gone is the so-called intelligence justification for detention. A detainee must be lawfully held under the laws of war, must have had that detention upheld by a federal court in a habeas proceeding, and [sic] considered a “significant threat to the security of the United States” to be ordered held by the PRB. And for the first time, the PRB is specifically ordered to consider the reliability of all information it receives.

Here’s another one, from the WaPo:

The executive order recognizes the reality that some Guantanamo Bay detainees will remain in U.S. custody for many years, if not for life. The new system allows them the prospect of successfully arguing in the future that they should be released because they do not pose a threat.

Both of these reports suggest the standard for continued detention is whether or not the detainee, himself, poses a threat.

Here’s the actual language of Obama’s EO:

Sec. 2. Standard for Continued Detention. Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

The subject of the sentence is not “the detainee” but “continued law of war detention.” “Continued law of war detention” is also the subject of the clause that the Administration is cynically claiming is a great standard that will be measured in Periodic Review Boards. Thus, the standard is not–as Gude and the WaPo suggest–that the detainee himself is a significant threat to the US. Rather, the standard is whether or not his detention is necessary to protect against a significant threat.

You need to look no further than the Yemeni detainees–whom the detainee review board has determined are not themselves a threat, but whom we continue to detain because conditions in Yemen make it impossible to release them without exacerbating the threat to the US there–to understand the difference. Now, the Administration has been pretty squirrely about whether this EO applies to the Yemeni detainees. But the EO says it applies to those whom the interagency review “designated for continued law of war detention.” And the Gitmo Task Force determined the Yemenis were designated for “conditional” detention (authorized by the law of war), because,

Al-Qaeda was gaining strongholds in certain regions of the country, and the government of Yemen was facing a rebellion in other regions. Potential options for rehabilitation programs and other security measures were carefully considered throughout the course of the review, but conditions in Yemen remained a primary concern.

Taking into account the current intelligence regarding conditions in Yemen, and the individual backgrounds of each detainee, the review participants unanimously approved 36 of 97 Yemeni detainees for transfer subject to appropriate security measures. The decision to approve these detainees for transfer, however, did not require immediate implementation. Rather, by making each transfer decision contingent on the implementation of appropriate security measures, the review participants allowed for necessary flexibility in the timing of the transfers. Under these transfer decisions, detainees would be returned to Yemen only at a time, and only under conditions, deemed appropriate from a security perspective.

In short, these men are not themselves a threat, but conditions in Yemen make it impossible to release them in such a way as to make sure they don’t become one.

Whether or not the Administration intends to give Periodic Review Boards to the Yemenis, this standard would permit their continued detention even if they themselves are no threat.

But the importance of the grammar of Obama’s so-called standard extends beyond its implication for the Yemenis. By not tying the standard to the terms of the AUMF, to membership in al Qaeda, or to capture on the battlefield, the EO’s standard for review would allow the continued detention of financiers of al Qaeda, people not picked up on a battlefield, men who were members of Hezb-e-Islami Gulbuddin but not al Qaeda, highly trained mujahadeen who may never have targeted the US, or people with a “history of associations with extremist activity” (all of whom were designated for indefinite detention by the task force). In other words, the EO defines itself not by the terms which the law of war would use to define those appropriately detained, but by terms we’ve expanded to include other people we just consider scary.

And those people–the people we think are scary but who have not necessarily targeted the US militarily–would not be invited to prove that they had never targeted the US, but instead they would have to prove that the government basis for considering them scary had no merit. I can imagine an old mujahadeen talking about working with the US to oust the Russians from Afghanistan to show that he didn’t oppose the US, only to have the government respond, “right, but that means you’re so well trained that your release represents a significant threat to the US.” The government could even argue (though I’m sure they won’t in these exact words) that we can’t release those that we mistakenly tortured (say, Mohamedou Ould Slahi) because doing so would reveal the methods we used, which would represent a significant threat to the US.

Finally, I find the vague standard disturbing for another reason. It’s bad enough that the government has divorced indefinite detention from the AUMF that hypothetically justifies that detention. But it has also divorced the concept of indefinite detention from al Qaeda, from the war against al Qaeda, from terrorism itself, even from “national” (read–military) security.

The grammar of the EO is a clear admission on the government’s part that it is willing to indefinitely detain a human being not for what he has done, but because of the big swirling boogeymen it believes to lurk out there.

And it’s important that those who write about this make that distinction clear.

  1. prostratedragon says:

    if it is necessary to protect against a significant threat to the security of the United States.

    What you say, at least, Marcy. Might it come down to the meaning of the word “it,” or am I just being too paranoid?

    My experience of life: If the devil is in the details it’s because in a slapdash world that’s where the messy mofo expects to be able to hide.

  2. tjbs says:

    “A detainee must be lawfully held under the laws of war,” or whatever the unitary executive says is the “laws of war, is today”.

    There is no more America of truth and Justice just the size of our guns.

  3. earlofhuntingdon says:

    Thank you. Gude’s generous, expansive read is stretching a fig leaf beyond its endurance. The EO is highly unlikely to be read that way by a judge, let alone by anyone in this administration or a successor Republican administration, either of which would ensure that no judge ever opines on it.

  4. earlofhuntingdon says:

    [T]he EO defines itself not by the terms which the law of war would use to define those appropriately detained, but by terms we’ve expanded to include other people we just consider scary.

    Exactly. And it plops them into the friendly, process-free arms of the American military – and their outsourced service providers. Two things differ between this and Bradley Manning’s treatment. The military had legitimate jurisdiction over Manning, though not the authority to treat him inhumanely or tortuously. The other factor is that the world knows about Manning, which may lead to him being treated less severely than our leaders would like. That legitimacy and those restraints won’t apply to prisoners taken under the “authority” of this EO.

    This EO consolidates the Cheney era’s contention that the world is the theater of war, all persons in it are subject to our jurisdiction and to being treated however we see fit; they are entitled to no compensation when we screw up or intentionally mistreat them. This is not the way in which the crowds in Madison consider themselves to be like Egyptians now.

  5. chetnolian says:

    Thank you Marcy. What really depresses me, as a foreigner who really wants the USA to be a force for good and then keeps finding it isn’t, is the thought of the lawyers who laboured over these words which you have so expertly unpacked, and then went home thinkling they had somehow advanced
    “freedom” and the supremacy of the American way.

  6. Jeff Kaye says:

    The grammar of the EO is a clear admission on the government’s part that it is willing to indefinitely detain a human being not for what he has done, but because of the big swirling boogeymen it believes to lurk out there.

    And it’s important that those who write about this make that distinction clear.


    By the way, Gude’s claim that “A detainee must be lawfully held under the laws of war, must have had that detention upheld by a federal court in a habeas proceeding,” doesn’t jibe with my reading. The EO states that “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention….”

    As I read it, the latter is a pro forma statement, because it appears the Obama administration believes it can indefinitely hold someone despite a habeas decision. They want to eviscerate habeas (as has already been done, really), by not formally taking away habeas petitions, but ignoring their outcome, and claiming a new entity, their Periodic Review Board, will determine who is actually released, not some (cough) court.

    And who is on the Periodic Review Board?

    “Periodic Review Board” means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.

    This puts the national IC community and military in charge of indefinite detention review. DOJ and State are mere rumps, at this point, of a militarist state seeking to put in place new institutions that will better represent their interests and rule.

    • emptywheel says:

      Well, and the standard for habeas review is much lower than a court would be. So it’s just permissive standard followed by permissive standard.

  7. fatster says:

    Those johnny-on-the-spot fixers, McCain & Lindsey Graham, are hard at work on a bill that would “Strip Detainee Authority from Holder and Future Attorneys General.” LINK.

  8. fatster says:

    Wonder who made this deal:

    Omar Khadr gets an education [by Pentagon lawyers] behind bars
    Canadian is ‘enthusiastic about learning’ in prison in Cuba: lawyer


  9. powwow says:

    Superb analysis, Marcy. Exactly right.

    This is President Obama’s continuation of the naked grab for power by President Bush, that has become institutionalized at Guantanamo.

    [And don’t get me started on the clueless, simple-minded Kelly Ayotte’s “detainee policy” question to the head honchos of the Navy and Marine Corps, that closed the sycophantic, reverential Senate Armed Services Committee hearing today… (Wanted: Members of Congress not in thrall to the military brass.)]

    Sabin Willett is an attorney from Bingham McCutchen in Boston, who’s been representing the Chinese Uighurs detained in Guantanamo Bay’s “law of war” prison camps since 2005. Sabin has a way with words, and this recent email born of experience, that he sent to Ben Wittes, captures the essence, I think, of the power grab at Guantanamo that the Executive Branch continues to expand, with impunity (in line with Jeff’s perceptive comment @ 6):

    Embrace [Guantanamo, or indefinite presidentially-ordered detention]? The real question is whether we are a people who must hold a Taliban private until the Greek Kalends in order to feel safe. And are content to debate forever over how to try an alleged war criminal, rather than actually trying him. The Congress says we are that timorous a people. They appear to be right. We’re not our grandfathers, that’s for sure.

    And we really aren’t a country committed to an independent judiciary, that’s become magnificently clear. You can have a habeas hearing, but you can’t have a judicial remedy. The Supreme Court issued a brave essay in 2008 [Boumediene], but since then has beat a retreat from every engagement that would give its essay force. Quality of evidence, standard of appellate review, remedy. The essay has been filleted by the circuit. Full of sound and fury — but what does it signify? A fellow wins his case against the government and the remedy is for the court to say to the jailer, “please will you do something about it?”

    Embrace it. Hmmm. The thing I’ve never understood is, why at least not convert GTMO to a POW camp? A real one? With real, honorable treatment of the enemy, as required by law and the service field manuals? Why the cages, interrogations, etc etc etc? Why aren’t there gardens, orchestras, newsletters, canteens, jobs — or were the Nazis (who had all those things in camps in Texas and Alabama) less dangerous than Taliban privates?

    America is Winston Smith. You remember how Orwell’s 1984 ends.

    [S]he loved Guantánamo.

    For those who’d like to read more of Willett’s eloquent, pointed writing on this subject, here’s his important recent reply brief in support of the Uighurs’ now-pending petition/plea for review before the Supreme Court (in “Kiyemba III”). That brief was obviously read and appreciated by the writer of this superb New York Times editorial published a week ago today, which highlights some of the reasons for Willett’s disgusted email:

    In a landmark case three years ago, the Supreme Court ruled that detainees at Guantánamo Bay, Cuba, who are not American citizens have “the constitutional privilege of habeas corpus.” It gives them the right to have a federal judge decide promptly whether their detention is illegal and, if so, order their release because the United States controls the place they are held. The 5-to-4 decision in what is known as the Boumediene case was a repudiation of the Bush strategy of imprisoning the detainees outside American territory so the Constitution would not apply. Or so many thought.

    The United States Court of Appeals for the District of Columbia Circuit, the only circuit where detainees can challenge their detention, has dramatically restricted the Boumediene ruling. In its hands, habeas is no longer a remedy for the problem the Boumediene majority called “arbitrary and unlawful restraint.”

    The sole recourse is for the Supreme Court, once again, to say what the Constitution requires judges to do in habeas cases.


    The [D.C. Circuit] appellate court has all but nullified that view of judicial power and responsibility backed by Justice Kennedy and the court majority. The Supreme Court should remind the appellate court which one leads the federal judicial system and which has a solemn duty to follow.

    It is all the more important that the Supreme Court act to rein in the D.C. Circuit, because evidently no branch of our federal government is the least bit inclined to forcibly remind the President that he too has “a solemn duty to follow” the law of war in wartime, including “competent tribunal” review of the default POW status of any (actual belligerent) wartime detainees captured or held by the United States military during a Congressionally-authorized armed conflict.

    • Mary says:

      “Sabin has a way with words”

      He sure does. These days, though, they have the tenor of last rites for something you know won’t survive. A prayer that what we are losing will have an afterlife.

  10. Mary says:

    It also means that it will continue to detain a torture victim whose story would cause more resentment against the US if he were released; or one who might come from a nation whose prosecutors aren’t like those at DOJ and who might actually file criminal charges on their behalf – it’s a danger to the US when it’s “political policies” that have arms and legs and free will and home addresses are put on trial. It’s a danger to the US when our Executive branch crimes are exposed for what they are. The torture victims at GITMO are pretty much like the special forces bullets in pregnant women they’ve just killed. Something incriminating you can’t let fall into the hands of people who might expose you.

    • Jeff Kaye says:

      It also means that it will continue to detain a torture victim whose story would cause more resentment against the US if he were released…

      This is why when detainees are released, they have to sign a statement they will not speak of their treatment at Guantanamo. Of course, a number of detainees have not abided by that, once free. Most, it seems, have.

      This is most likely why they won’t release the last British resident held at Guantanamo, Shaker Aamer, as Andy Worthington has pointed out again and again, as Shaker has things to say, not least, it appears, about the supposed 2006 triple “suicides” at the prison.

      Given recent statements about medical experiments done on detainees by former prisoner, Murat Kurnaz, made to the German press, I think there’s a lot still to learn about the horror that is Guantanamo.