The E.O. states that it has been issued pursuant to the President's constitutional authority as well as the September 2001 Authorization for Use of Military Force. It does not purport to establish any additional or separate source of detention authority. The Order and fact sheet articulate the following elements:
1. The fact sheet calls for the resumption of trials before military commissions "for international terrorists that [sic] fall within their jurisdiction" in light of "key reforms" to the military commission system, including the bar on the use of statements taken as a result of cruel, inhuman or degrading treatment. As our readers will recall, in Hamdan v. Rumsfeld, the Supreme Court confirmed that military commissions may only assert jurisdiction over violations of the law of war as opposed over crimes that are defined by general international criminal law, domestic law, or the international prohibitions against terrorism. Here is Secretary of Defence Gates's statement rescinding the moratorium.
2. The E.O. establishes a periodic review of the continued detention of current detainees who have been deemed to qualify for prolonged security detention by the inter-agency review mandated by E.O. 13492 (Jan. 22, 2009) or those individuals who have been referred for prosecution but have not yet been charged or prosecuted. By the terms of the E.O., this periodic review will not apply to future detainees. This review is also separate and apart from the habeas rights already being asserted with varying degrees of success by detainees in federal courts. Although some details of this process are provided in the E.O., full implementing guidelines will be issued by the Secretary of Defense in consultation with the Attorney General. The standard for continued detention is that an individual's detention is
necessary to protect against a significant threat to the security of the United States.3. Each current detainee is entitled to a full initial review within one year of this date before an inter-agency Periodic Review Board (PRB) composed of representatives from the Departments of State, Defense, Justice and Homeland Security as well as the offices of the Director of National Intelligence and the Chair of the Joint Chiefs of Staff. Then, detainees are entitled to a "file review" every 6 months that will consider "relevant new information" compiled by the Secretary of Defense plus a written statement from the detainee. The file review may result in a full review if "a significant question is raised as to whether the detainee's continued detention is warranted." Barring this, subsequent full reviews are to be provided triennially. (Note: The 4th Geneva Convention calls for a 6-month review of all security detentions of non-POWs).
4. The initial and periodic full reviews shall involve the following procedural steps and protections:
- the provision of notice of the review and a summary of the factors to be considered by the PRB in determining whether continued detention is warranted;
- the right of the detainee to submit evidence and witness testimony relevant to the determination of whether the detention remains necessary;
- the provision of all information relevant to the inquiry, including "mitigating information," except where there are national security concerns that might require the provision of "a sufficient substitute or summary" rather than the raw material;
- there is no adversarial discovery allowed from the government;
- the detainee is entitled to a personal representative (who is an advocate) and private counsel (at the detainee's expense);
- a "reliability" determination of all the information provided by the PRB;
- a "prompt" written disposition, including recommendations for transfer conditions in the event that the continued detention standard has not been met;
- review by a Review Committee (composed of the Secretary of State, the Secretary of Defense, the AG, the Secretary of Homeland Security, the Director of National Intelligence, and the Chair of the Joint Chiefs of Staff) on that Committee's discretion or if consensus within the PRB cannot be reached;
- no appeal of any review process is available to the detainee.
6. The fact sheet promises the launch of additional criminal prosecutions in Article III courts. The fact sheets criticizes Congress's "intrusion" into this process and promises to seek the repeal of restrictions on the prosecution of detainees in federal courts (see our discussion here and here).
5. The fact sheet indicates that the Executive remains committed to exercising its discretion to choose the appropriate forum for further prosecutions, including with respect to individuals whom the United States may "apprehend in the future." The fact sheet argues:
A one-size-fits-all policy for the prosecution of suspected terrorists, whether for past or future cases, undermines our Nation’s counterterrorism efforts and harms our national security.6. The fact sheet expresses support for two "components" of the international legal framework governing armed conflicts:
a. Protocol II, i.e., the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (June 8, 1977), and
b. Article 75 of Protocol I to the 1949 Geneva Conventions.
With respect to the former, the Administration recommends ratification, particularly in light of the fact that an inter-agency review has concluded that U.S. military practice is consistent with the Protocol and its imperative of humane treatment in the conduct of armed conflicts. With respect to the latter, the United States is already on record indicating that Article 75 of Protocol I constitutes customary international law vis-a-vis international armed conflicts (query its relevance here given that the conflict has been characterized as non-international by the Supreme Court in Hamdan). The fact sheet does not repeat this observation, but it does reaffirm that the Article is "consistent with our current policies" and has historically earned our support. Article 75 provides certain "fundamental protections" that apply in international armed conflicts, broadly defined, to those individuals "in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol." These basic protections include:
► The right to be treated humanely in all circumstances and without discrimination.
► The right to respect for the person, honour, convictions and religious practices of all such persons.
► Prohibitions on the following acts "at any time and in any place whatsoever, whether committed by civilian or by military agents:"
- violence to the life, health, or physical or mental well-being of persons, including (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and
- outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
- the taking of hostages;
- collective punishments; and
- threats to commit any of the foregoing acts.
Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.
► The right to have any sentence or penalty be made pursuant to "a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure." These protections include the following:
- the right to be informed of charges without delay,
- all necessary rights and means to launch a defense,
- the right to be judged based upon one's individual responsibility,
- the protection against ex post facto prosecution,
- the principle of lenity,
- the right to be presumed innocent until proven guilty,
- rights to be present at trial, confrontation rights and the protection against self-incrimination, and
- the protection of res judicata
8. This law-of-war detention policy shall be reviewed every four years.