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 U.S. 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."