The nonprofit investigative journalism organization ProPublica reported yesterday that the Obama Administration is drafting an executive order implementing indefinite detention regimes for certain inmates at Guantanamo. The order will affect dozens of prisoners and will include a review process for the evidence against detainees. Says ProPublica:
The draft order, a version of which was first considered nearly 18 months ago, is expected to be signed by President Obama early in the New Year. The order allows for the possibility that detainees from countries like Yemen might be released if circumstances there change.
But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.
ProPublica reminds us in the article that the initial consideration for an executive order of this nature was dropped in 2009 after the Obama Administration announced that they would work with Congress on legislation to this effect. But by the end of the year the Obama Administration had dropped that course of action as well. Now it appears that the executive order method of implementation is back.
The article also notes that detainees have already won the right to challenge their detentions in the U.S. Court system. The review process established by this executive order would be a process overseen by the Executive Branch, and it would look at the evidence against each detainee under consideration and would "weigh the necessity of detention, rather than its lawfulness," according to unnamed officials paraphrased in the article. ProPublica describes the review process:
If signed by President Obama, the new order will provide added review for detainees designated for long-term detention. The order, which is being drafted jointly by White House staff in the National Security council and the White House counsel, will offer detainees in this category a minimal review every six months and then a more lengthy annual review. Detainees will have access to an attorney, to some evidence against them and the ability to challenge their continued detention.
It is true that only unnamed administration sources are cited in the article regarding the details of the executive order. However, it is not so surprising at this stage that no one is allowed to go on the record discussing this order, which is sure to be somewhat controversial and anyway is not yet finalized. This may be a trial balloon, with the Obama Administration assessing the potential backlash to this policy from Congress (probably will be little to none), Constitutional activist groups (certain to oppose this), and the public at large (wait for a collective yawn).
Now, I bet a lot of people reading this will see that the Obama Administration is including a review process in this and take that as a step forward. However, judicial review for these detainees was already established, before Obama even became president, so this review process really serves the Administration's own purposes and does not, in my opinion, recommend any kind of adequate protection level for detainees. Even if it does increase the limitations on the indefinite detention process, it is akin to giving a slightly nicer face to a process that remains dangerously unconstitutional.
After all, while, under the international laws of war, prisoners of war can be detained until the cessation of hostilities, the problem here is that both the Bush and the Obama administrations have depended on declaring that the entire world is a battlefield (in a war that was never officially declared) in order to justify such extra-constitutional policies such as indefinite detention. No matter what executive level reviews are put in place, if detainees are to be held forever without trial, this is in direct contravention of due process; also, can you imagine that any president is ever going to declare that the so-called War on Terror is over?
I'll let the ACLU have the last word on this issue:
If there is reliable evidence against a detainee, he should be prosecuted in our federal courts, which are well-equipped to handle sensitive national security evidence while protecting fundamental rights. If there is not enough reliable evidence for prosecution, there is certainly not enough to justify locking them up – possibly forever.
Imprisoning people indefinitely without charge or trial is illegal, un-American and an impediment to achieving justice.