On 22 January 2009, President Obama released a series of Executive Orders that signaled a wholesale review of the entire legal architecture underpinning the Government’s detention of terrorist suspects.  The orders indicate the new administration’s fundamentally different approach to the treatment of so-called “enemy combatants”, including a willingness to abide by standards of international law.  However, last week, conflicting views between military judges regarding the suspension of the case of a Guantanamo detainee demonstrated that the transition to a new, legally sanctioned system may be hindered by officials held over from the Bush administration.

The three orders issued by President Obama address different aspects of the procedures put in place by the Bush administration to detain and elicit information from suspected terrorists.  The first order establishes an immediate review of all individuals detained at Guantanamo Bay and, in the meantime, imposes a halt on all military commission proceedings.  The order also crystallises President Obama’s promise to close the Guantanamo Bay facility within a year and requires the current detention of individuals at Guantanamo to be in conformity with the Geneva Conventions.  In contrast to the first order, which focuses specifically on the Guantanamo Bay facility, the second order examines detention of terrorist suspects at a macro level, establishing a Special Task Force to identify lawful policy options “for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations”.  Finally, the third order addresses concerns about torture by the US Government, stating that all detainees must be treated humanely in accordance with Common Article III of the Geneva Conventions.  This follows an admission last month by judge Susan Crawford, who presides over the military commissions, that certain interrogation techniques used by the US military amounted to torture.

There is much to be commended in the text and spirit of the orders, and their promptness indicates a determination by the Obama administration to treat the issues of detention and alleged torture of terrorist suspects as a key priority.  One refreshing aspect of the orders is their tendency to see national security interests and the interests of justice as compatible, rather than as conflicting, values.  For example, in discussing whether a ban on brutal interrogation practices would hinder the Government’s ability to gather valuable intelligence, President Obama’s advisers unanimously concluded that a change in interrogation practices would not materially affect intelligence-gathering capabilities.  This rejection of the “national security vs. adherence to the law” dichotomy represents a welcome step forward for the new administration, signalling an approach that sees the two as heading in the same direction, rather than seeing compliance with international law as an irritating (albeit necessary) obstruction.

However, the realisation of a new policy towards terrorist suspects and an increased willingness to respect international law will not be a journey without glitches.  As the case of Abd al-Rahim al-Nashiri proved last week, there are still diverging views amongst key Defense officials about whether the closure of Guantanamo and the suspension of all military commission proceedings is the right course to take.  Al-Nashiri, a detainee at Guantanamo Bay who has been accused of planning the attack on the USS Cole in 2000, was facing arraignment on 9 February this year.  Although President Obama’s first executive order clearly stated that the Secretary of Defense was to take immediate steps to ensure that all proceedings pending before the military commissions be halted, military commissions judge James Pohl refused to suspend the proceeding of al-Nashiri, stating that “Congress passed the Military Commissions Act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future.”  Pohl’s refusal to suspend al-Nashiri’s arraignment came as a surprise after all other military commission judges had unquestioningly and promptly complied with the executive order.  Although the effect of Pohl’s refusal was quickly neutralised by a decision by judge Susan Crawford to dismiss the charges against al-Nashiri, Pohl’s characterisation of the Government’s stance as “unpersuasive” opened a minefield of questions relating to whether judges have the authority to refuse an executive order to suspend the military commissions.

Technical issues of authority aside, Pohl’s refusal can also be seen as a strong reminder that there are Defense officials out there who believe in the preservation of Guantanamo and who are prepared to use their power to slow or subvert the transition to a new system.  As Anthony D Romero of the American Civil Liberties Union said, Pohl’s decision “shows how officials held over from the Bush administration are exploiting ambiguities in President Obama’s executive order as a strategy to undercut the President’s unequivocal promise to shut down Guantanamo and end the military commissions.”  Although in this case Pohl’s refusal was promptly overruled by a higher authority, the possibility that similar dissent and hindrances will arise in the future (perhaps at higher levels of authority) means that the road to the closure of Guantanamo may not necessarily be a smooth one, and may face resistance from those who are technically part of the new administration, but whose allegiances remain with the former administration.