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The unitary executive lives on in an executive order the administration has drafted for the indefinte detention of Guanatanmo Bay detainees.

The White House is preparing an Executive Order on indefinite detention that will provide periodic reviews of evidence against dozens of prisoners held at Guantanamo Bay, according to several administration officials.

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.

Nearly two years after Obama's pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.

That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president's embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.

The administration was also going to work with Congress to develop a system of military commissions that the president said "failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees that we were holding at the time."  He continued:

Today, the Department of Defense will be seeking additional continuances in several pending military commission proceedings.  We will seek more time to allow us time to reform the military commission process.  The Secretary of Defense will notify the Congress of several changes to the rules governing the commissions. The rule changes will ensure that: First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify. And fifth, military commission judges may establish the jurisdiction of their own courts.

Unfortunately, the trial of Omar Khadr proved those reforms were not implemented. Greenwald:

The Obama administration's claim that the commissions are now improved to the point that they provide a forum of real justice is being put to the test -- and blatantly failing -- with the first such commission to be held under Obama:  that of Omar Khadr, accused of throwing a grenade in 2002 which killed an American solider in Afghanistan, when Khadr was 15 years old.  This is the first trial of a child soldier held since World War II, explained a U.N. official who condemned these proceedings.   The commission has already ruled that confessions made by Khadr which were clearly obtained through coercion, abuse and torture will be admitted as evidence against him.  Prior to the commencement of Khadr's "trial," the commission ruled in another case that the sentence imposed on a Sudanese detainee Ibrahim al-Qosi -- convicted as part of a plea bargain of the dastardly crime of being Osama bin Laden's "cook" -- will be kept secret until he is released.  What kind of country has secret sentences? 

Apparently, the U.S. is the kind of country that has secret sentences. But, hey. The detainees' lawyers get to complain about it, at least, and get to have "periodic reviews of evidence."

Originally posted to Daily Kos on Wed Dec 22, 2010 at 07:40 PM PST.

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