Peter Finn and Anne E. Kornblut / The Washington Post & Max Fisher / National Journal – 2011-01-09 00:32:19
Obama Administration Readies Indefinite Detention Order for Guantanamo Detainees
Peter Finn and Anne E. Kornblut / The Washington Post
(December 21, 2010) — The Obama administration is preparing an executive order that would formalize indefinite detention without trial for some detainees at the US military prison at Guantanamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration, US officials said.
The administration has long signaled that the use of prolonged detention, preferably at a facility in the United States, was one element of its plan to close Guantanamo. An interagency task force found that 48 of the 174 detainees remaining at the facility would have to be held in what the administration calls prolonged detention.
“We have a plan to close Guantanamo, and this detainee review process is one element,” said an administration official who discussed the order on the condition of anonymity because it has yet to reach the president.
However, almost every part of the administration’s plan to close Guantanamo is on hold, and it could be crippled this week if Congress bans the transfer of detainees to the United States for trial and sets up steep hurdles to the repatriation or resettlement in third countries of other detainees.
Officials worked intensively on the executive order over the past several weeks, but a senior White House official said it had been in the works for more than a year. If Congress blocks the administration’s ability to put detainees on trial or transfer them out of Guantanamo, the official said, the executive order could still be implemented.
“I would argue that you still have to go ahead because you can’t simply have people confined to a life sentence without any review and then fight another day with Congress,” the administration official said. “One of things we’re mindful of is [that] you can’t have a review conducted by the same people, in the same process, who made the original decision to detain. You have to have something that is different and is more adversarial, which the Bush administration never had.”
Under the system established by the previous administration, Guantanamo detainees could go before military review panels with “personal representatives,” also military officers, who explained the process but could not act as lawyers. The system envisioned under the executive order would be more adversarial and would allow detainees to challenge their incarceration periodically, possibly every year.
“There isn’t a single serious commentator on the subject who hasn’t thought something like this wasn’t necessary as part of a rule-of-law approach,” said the senior White House official, who also spoke on the condition of anonymity.
Provisions in the defense authorization bill, which has passed the House and is before the Senate, would effectively ban the transfer of any detainee to the United States for any purpose. That rules out civilian trials for all Guantanamo detainees, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks. His potential prosecution had remained possible even though the administration had balked in the face of political opposition to a trial in New York.
The defense bill, if it passes the Senate, would effectively force the administration to conduct only military commissions and at Guantanamo Bay, which would also have to remain open to house those held indefinitely. The bill would also create new requirements before the administration could repatriate or resettle detainees who were cleared for release by the interagency task force.
“If it passes, it is the final, decisive blow to the president’s plan,” said Tom Malinowski, head of the Washington office of Human Rights Watch.
In a speech at the National Archives in May 2009, President Obama said his administration would use criminal trails, reformed military commissions, transfers to other countries, releases and continued detention in pursuit of its commitment to close Guantanamo.
An administration task force ultimately determined that at least 48 detainees were too dangerous to release but could not be put on trial. Officials have said the evidence against these detainees has been tainted by torture or cannot be used in court because it is classified or would not meet legal standards.
“When the review panel puts someone in the category of long-term detention, the 48 people, what happens then?” the administration official said. “Are they there for the rest of their lives? What’s the review mechanism? How impartial is it? Do they have a chance to contest it? All of that stuff has to be answered. And we have been working on an executive order laying out these elements.”
Those designated for prosecution but who are not charged could also have their cases reviewed under the proposed system in the executive order, the White House official said.
Detainees at Guantanamo would continue to have access to the federal courts to challenge their incarceration under the legal doctrine of habeas corpus. Officials said the plan would give detainees who have lost their habeas petition the prospect of one day ending their time in US custody. And officials said the International Committee of the Red Cross has been urging the administration to create a review process.
Some civil liberties groups oppose any form of indefinite detention, even with a built-in mechanism to challenge incarceration.
“Indefinite detention without charge or trial is wrong, whether it comes from Congress or the president’s pen,” said Laura W. Murphy, director of the ACLU’s Washington legislative office. “Our Constitution requires that we charge and prosecute people who are accused of crimes. You cannot sell an indefinite detention scheme by attaching a few due process baubles and expect that to restore the rule of law. That is bad for America and is not the form of justice we want other nations to emulate.”
The executive order, however, could be an effort to preempt legislation supported by some Republicans, which would create a system of indefinite detention not only for some Guantanamo detainees but also for future terrorism suspects seized overseas.
Malinowski said there is a “big difference” between using an executive order, which can be rescinded, to handle a select group of detainees that Obama inherited, and legislating a general indefinite detention scheme.
Staff researcher Julie Tate contributed to this report.
Why Is Obama Now Pushing for Indefinite Detention?
Max Fisher / National Journal
(December 22, 2010) — The White House is drafting an executive order that would authorize detainees at Guantanamo Bay to be held indefinitely, despite President Obama’s long-held desire to close Guantanamo. The order, as it currently stands, would also outline procedures for how to handle those detainees and would establish mechanisms for possibly moving them out of Guantanamo to the US legal system or to a foreign country.
While the Obama administration has struggled on detainee policy — many Republicans and some Democrats oppose closing Guantanamo, and the civilian trials of suspected terrorists have not always gone as planned — this move towards indefinite detention has surprised observers. Here’s what they’re saying.
What The Plan Would Do
The New York Times‘ Charlie Savage lays it out:
In broad strokes, it would establish something like a parole board to evaluate whether each detainee poses a continued threat, or whether he can be safely transferred to another country. … The proposal would replace the “annual review boards” that the Bush administration had used to revisit its decision to hold each prisoner….
The Obama proposal, by contrast, would establish a “periodic review board” drawn from many agencies, not just the military, and modeled on a parole board, one official said. Detainees would be represented by lawyers and would have greater access to some of the evidence against them.
What Led Obama to This Plan
The Washington Post‘s Peter Finn and Anne Kornblut give the backstory. “The administration has long signaled that the use of prolonged detention, preferably at a facility in the United States, was one element of its plan to close Guantanamo. An interagency task force found that 48 of the 174 detainees remaining at the facility would have to be held in what the administration calls prolonged detention.”
The Underlying Problem: Bush-Era Torture
“This is certainly not shocking,” pseudonymous liberal blogger bmaz sighs, “as the Obama Administration long ago indicated there were at least 48 or so detainees they felt too dangerous to release and their cases unable to be tried in any forum, Article III or military commission.
This is, of course, because the evidence they have on said cases is so tainted by torture, misconduct and lack of veracity that it is simply not amenable to any legal process. Even one of their kangaroo courts would castigate the evidence and the US government proffering it.”
Why This Might Not Work
Spencer Ackerman explains that it’s not clear how a judge could evaluate the case against a detainee when the case is based on legal as well as strategic decisions. “How could a detainee’s counsel successfully argue that he no longer poses a threat? …
We’d never leave it for a judge to determine whether, say, Yemen is still a terror-exporting nation. So what’s the point of having a lawyer in the process, if this is an exclusively executive-derived process?” So how to evaluate the validity of the government’s case? “What kind of hybrid is Obama creating?”
Goes Against Our Basic Principles
“It’s been clear from the beginning,” Outside the Beltway’s Doug Mataconis writes, “that we needed some kind of policy to govern detainees captured during the so-called War on Terror, but I’m not at all certain that this is the way to do it. Ruling by Executive Decree is not compatible with life in a democratic republic, and the failure of Congress to act here has been unconscionable.”
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