Obama's Guantánamo Policy: Legally and Morally Bankrupt

[Better Believe It]

Obama's Guantánamo Policy: Legally and Morally Bankrupt
The White House insists it's making the best of a bad lot. But technocratic tinkering fails to address the basic moral anomaly
by Karen Greenberg
March 8, 2011

In contrast to its predecessor, yesterday's executive order was anything but pathbreaking. It tacitly acknowledged that the premises of detention in the "war on terror" begun by the Bush administration in the fall of 2001 still hold. More tellingly still, it demonstrated that the Obama administration now not only accepts the fact of Guantánamo's existence as a given, but has also abandoned any debate over whether or not indefinite detention should be the policy of the land.

Under this new detainee review plan, the blueprint set out nearly a decade ago remains. At the outset, the underlying rationale for detention at Guantánamo Bay rests upon the September 2001 Authorization to Use Military Force (AUMF). So, too, as decreed in the November 2001 Military Order, the department of defence remains the lead player in implementing the guidelines of the executive order, although "consultation with the attorney general" is prescribed. In terms of the procedures for review of the cases, those, too, are essentially new and updated versions of those that constituted the administrative review boards and the combatant status review tribunals, in which each detainee's status was reviewed and chance for trial or release assessed. The justification for continued detention is familiar also – to wit, "to protect against a significant threat to the security of the United States".

In light of these reforms, it is no surprise that the administration on Wednesday also repealed its two-year ban on military tribunals at Guantánamo Bay. As in so much of the administration's response to Guantánamo, the basic explanation for their policy decisions is that they "had no choice". In the case of the military tribunals, the administration announced plans in 2009 to try some cases in federal court and some at Guantánamo. Both Congress and public opinion have made that seemingly impossible. Congress has voted not to fund any transfers of detainees to the country, and the public reaction to the trial of Guantánamo detainee Ahmed Ghailani – acquitted on 284 counts, but sentenced to life without parole on just one charge – has demonstrated that when it comes to justice, the American public is not content to risk any repetition of what was widely (mis)perceived as a not guilty verdict.

The Obama administration's basic premise in both the new measures is that they have thought carefully for two years about how to resolve the remaining 172 cases at Guantánamo. The result of these deliberations is that they have devised an improved bureaucratic structure both for deciding whether or not to try these individuals and for mounting their trials. But the fact is that no technocratic reform of procedure can address the central problem of Guantánamo. It is not philosophically or morally possible to make better the indefinite and extra-legal detention of individuals who have not been formally accused of a crime or who are not detained under a category recognized by international law.

Read the full article at:

http://www.commondreams.org/view/2011/03/08-0

[Name removed]

1. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Tierra_y_Libertad]

2. Well, the poor little POTUS is powerless, has a lot on his plate, doesn't have the votes, etc, etc.

You'd think he was the dishwasher rather than president.

[chill_wind]

3. Rec.

[AKDavy]

4. Thanks for posting

I am ashamed.

[Solly Mack]

5. K&R

[RandomThoughts]

6. I can explain it.

They don't want to pay the beer and travel money.

They racked up bad effects from wrong actions for years, and that action has created some angry people, and will continue to create bad effects into the future for awhile even if corrected.

If they correct things right now, they have to pay for that wrong action, and nobody wants to take that damage of years of bad feelings mistakes made. So they don't correct things.

It is why once you take the path to the darkside, forever will it dominate your destiny, and even why the slave becomes the master in some contexts.

There are no good choices, except educating the populations, so they know when something bad happens it was not for stopping a bad program, but because of a legacy of a bad program till it gets corrected. Then the population can know to correct the consolidations.

In that way actions do have costs.

and nobody wants to pay for the Gitmo crimes.


Just like they don't want to pay the beer and travel money that is due to me, and instead they rack up debt that is already at a level they don't want to pay.

Seriously, it is the same thing.

Some chose a ring of power, 10 men, doomed to die.

Wrapped around your finger.
http://www.youtube.com/watch?v=Hu7D-6-jkPM


(Side note, Sting was educating)

[leftstreet]

7. K&R

[TreasonousBastard]

8. So, what's the alternative? Even the article said moving them to the US and...

using civilian courts became impossible, but then went on to talk about how horrible that is.

OK, if it's so horrible, come up with something not so horrible that can actually be done.

Or, at least put the blame where it belongs-- and it's not Obama, who did try.

[Better Believe It]

14. How about charging them with criminal activity and providing a fair trial before a real jury!

That's a novel idea!

Hell, there should be something in the Constitution along those lines!

And what should the Obama administration do if it doesn't have any evidence the detained person has violated any laws but they think they might have .... or the detained person might do something illegal in the future? Well, most of them are Muslims! Isn't that enough?

So what should the United States government do with detained people who haven't been charged with, much less convicted, of illegal activity?

Release them!

[TreasonousBastard]

15. Tried that, and it was shot down. Even mentioned it in the article....

and I remember the screaming of how the world would end when it was suggested we try them in NYC.

When Obama attempted to move them from Gitmo, not one place in the US was open to them. Every Federal penitentiary or holding cell was barred by Congress from holding a Gitmo detainee.

Any more suggestions that don't require a massive change in Congressional or public mood?

[Better Believe It]

16. Charge them or free them. And have a standard jury trial in Washington, D.C.

"not one place in the US was open to them"

That's tens of thousands of places. I'm sure the Obama administration could find more than a few suitable locations in the United States if they supported the Constitution.

Wouldn't you find a way to do it?

Let the right-wingers scream their bloody heads off against the Constitution.

[in_cog_ni_to]

9. Ditto

What she said.

[Better Believe It]

10. President Obama's Executive Order on Guantanamo Text

The White House

Office of the Press Secretary

For Immediate Release March 07, 2011
Executive Order--Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pusuant to the Authorization for Use of Military Force
EXECUTIVE ORDER

PERIODIC REVIEW OF INDIVIDUALS DETAINED AT GUANTÁNAMO BAY NAVAL STATION PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE


By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force of September 2001 (AUMF), Public Law 107-40, and in order to ensure that military detention of individuals now held at the U.S. Naval Station, Guantánamo Bay, Cuba (Guantánamo), who were subject to the interagency review under section 4 of Executive Order 13492 of January 22, 2009, continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

Section 1. Scope and Purpose. (a) The periodic review described in section 3 of this order applies only to those detainees held at Guantánamo on the date of this order, whom the interagency review established by Executive Order 13492 has (i) designated for continued law of war detention; or (ii) referred for prosecution, except for those detainees against whom charges are pending or a judgment of conviction has been entered.

(b) This order is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch's continued, discretionary exercise of existing detention authority in individual cases. It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law. Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.

(c) In the event detainees covered by this order are transferred from Guantánamo to another U.S. detention facility where they remain in law of war detention, this order shall continue to apply to them.

Sec. 2. Standard for Continued Detention. Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

Sec. 3. Periodic Review. The Secretary of Defense shall coordinate a process of periodic review of continued law of war detention for each detainee described in section 1(a) of this order. In consultation with the Attorney General, the Secretary of Defense shall issue implementing guidelines governing the process, consistent with the following requirements:

(a) Initial Review. For each detainee, an initial review shall commence as soon as possible but no later than 1 year from the date of this order. The initial review will consist of a hearing before a Periodic Review Board (PRB). The review and hearing shall follow a process that includes the following requirements:

(1) Each detainee shall be provided, in writing and in a language the detainee understands, with advance notice of the PRB review and an unclassified summary of the factors and information the PRB will consider in evaluating whether the detainee meets the standard set forth in section 2 of this order. The written summary shall be sufficiently comprehensive to provide adequate notice to the detainee of the reasons for continued detention.

(2) The detainee shall be assisted in proceedings before the PRB by a Government-provided personal representative (representative) who possesses the security clearances necessary for access to the information described in subsection (a)(4) of this section. The representative shall advocate on behalf of the detainee before the PRB and shall be responsible for challenging the Government's information and introducing information on behalf of the detainee. In addition to the representative, the detainee may be assisted in proceedings before the PRB by private counsel, at no expense to the Government.

(3) The detainee shall be permitted to (i) present to the PRB a written or oral statement; (ii) introduce relevant information, including written declarations; (iii) answer any questions posed by the PRB; and (iv) call witnesses who are reasonably available and willing to provide information that is relevant and material to the standard set forth in section 2 of this order.

(4) The Secretary of Defense, in coordination with other relevant Government agencies, shall compile and provide to the PRB all information in the detainee disposition recommendations produced by the Task Force established under Executive Order 13492 that is relevant to the determination whether the standard in section 2 of this order has been met and on which the Government seeks to rely for that determination. In addition, the Secretary of Defense, in coordination with other relevant Government agencies, shall compile any additional information relevant to that determination, and on which the Government seeks to rely for that determination, that has become available since the conclusion of the Executive Order 13492 review. All mitigating information relevant to that determination must be provided to the PRB.

(5) The information provided in subsection (a)(4) of this section shall be provided to the detainee's representative. In exceptional circumstances where it is necessary to protect national security, including intelligence sources and methods, the PRB may determine that the representative must receive a sufficient substitute or summary, rather than the underlying information. If the detainee is represented by private counsel, the information provided in subsection (a)(4) of this section shall be provided to such counsel unless the Government determines that the need to protect national security, including intelligence sources and methods, or law enforcement or privilege concerns, requires the Government to provide counsel with a sufficient substitute or summary of the information. A sufficient substitute or summary must provide a meaningful opportunity to assist the detainee during the review process.

(6) The PRB shall conduct a hearing to consider the information described in subsection (a)(4) of this section, and other relevant information provided by the detainee or the detainee's representative or counsel, to determine whether the standard in section 2 of this order is met. The PRB shall consider the reliability of any information provided to it in making its determination.

(7) The PRB shall make a prompt determination, by consensus and in writing, as to whether the detainee's continued detention is warranted under the standard in section 2 of this order. If the PRB determines that the standard is not met, the PRB shall also recommend any conditions that relate to the detainee's transfer. The PRB shall provide a written summary of any final determination in unclassified form to the detainee, in a language the detainee understands, within 30 days of the determination when practicable.

(8) The Secretary of Defense shall establish a secretariat to administer the PRB review and hearing process. The Director of National Intelligence shall assist in preparing the unclassified notice and the substitutes or summaries described above. Other executive departments and agencies shall assist in the process of providing the PRB with information required for the review processes detailed in this order.

(b) Subsequent Full Review. The continued detention of each detainee shall be subject to subsequent full reviews and hearings by the PRB on a triennial basis. Each subsequent review shall employ the procedures set forth in section 3(a) of this order.

(c) File Reviews. The continued detention of each detainee shall also be subject to a file review every 6 months in the intervening years between full reviews. This file review will be conducted by the PRB and shall consist of a review of any relevant new information related to the detainee compiled by the Secretary of Defense, in coordination with other relevant agencies, since the last review and, as appropriate, information considered during any prior PRB review. The detainee shall be permitted to make a written submission in connection with each file review. If, during the file review, a significant question is raised as to whether the detainee's continued detention is warranted under the standard in section 2 of this order, the PRB will promptly convene a full review pursuant to the standards in section 3(a) of this order.

(d) Review of PRB Determinations. The Review Committee (Committee), as defined in section 9(d) of this order, shall conduct a review if (i) a member of the Committee seeks review of a PRB determination within 30 days of that determination; or (ii) consensus within the PRB cannot be reached.

Sec. 4. Effect of Determination to Transfer. (a) If a final determination is made that a detainee does not meet the standard in section 2 of this order, the Secretaries of State and Defense shall be responsible for ensuring that vigorous efforts are undertaken to identify a suitable transfer location for any such detainee, outside of the United States, consistent with the national security and foreign policy interests of the United States and the commitment set forth in section 2242(a) of the Foreign Affairs Reform and Restructuring Act of 1998 (Public Law 105-277).

(b) The Secretary of State, in consultation with the Secretary of Defense, shall be responsible for obtaining appropriate security and humane treatment assurances regarding any detainee to be transferred to another country, and for determining, after consultation with members of the Committee, that it is appropriate to proceed with the transfer.

(c) The Secretary of State shall evaluate humane treatment assurances in all cases, consistent with the recommendations of the Special Task Force on Interrogation and Transfer Policies established by Executive Order 13491 of January 22, 2009.

Sec. 5. Annual Committee Review. (a) The Committee shall conduct an annual review of sufficiency and efficacy of transfer efforts, including:

(1) the status of transfer efforts for any detainee who has been subject to the periodic review under section 3 of this order, whose continued detention has been determined not to be warranted, and who has not been transferred more than 6 months after the date of such determination;

(2) the status of transfer efforts for any detainee whose petition for a writ of habeas corpus has been granted by a U.S. Federal court with no pending appeal and who has not been transferred;

(3) the status of transfer efforts for any detainee who has been designated for transfer or conditional detention by the Executive Order 13492 review and who has not been transferred; and

(4) the security and other conditions in the countries to which detainees might be transferred, including a review of any suspension of transfers to a particular country, in order to determine whether further steps to facilitate transfers are appropriate or to provide a recommendation to the President regarding whether continuation of any such suspension is warranted.

(b) After completion of the initial reviews under section 3(a) of this order, and at least once every 4 years thereafter, the Committee shall review whether a continued law of war detention policy remains consistent with the interests of the United States, including national security interests.

Sec. 6. Continuing Obligation of the Departments of Justice and Defense to Assess Feasibility of Prosecution. As to each detainee whom the interagency review established by Executive Order 13492 has designated for continued law of war detention, the Attorney General and the Secretary of Defense shall continue to assess whether prosecution of the detainee is feasible and in the national security interests of the United States, and shall refer detainees for prosecution, as appropriate.

Sec. 7. Obligation of Other Departments and Agencies to Assist the Secretary of Defense. All departments, agencies, entities, and officers of the United States, to the maximum extent permitted by law, shall provide the Secretary of Defense such assistance as may be requested to implement this order.

Sec. 8. Legality of Detention. The process established under this order does not address the legality of any detainee's law of war detention. If, at any time during the periodic review process established in this order, material information calls into question the legality of detention, the matter will be referred immediately to the Secretary of Defense and the Attorney General for appropriate action.

Sec. 9. Definitions. (a) "Law of War Detention" means: detention authorized by the Congress under the AUMF, as informed by the laws of war.

(b) "Periodic Review Board" means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.

(c) "Conditional Detention" means: the status of those detainees designated by the Executive Order 13492 review as eligible for transfer if one of the following conditions is satisfied: (1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available.

(d) "Review Committee" means: a committee composed of the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff.

Sec. 10. General Provisions. (a) Nothing in this order shall prejudice the authority of the Secretary of Defense or any other official to determine the disposition of any detainee not covered by this order.

(b) This order shall be implemented subject to the availability of necessary appropriations and consistent with applicable law including: the Convention Against Torture; Common Article 3 of the Geneva Conventions; the Detainee Treatment Act of 2005; and other laws relating to the transfer, treatment, and interrogation of individuals detained in an armed conflict.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) Nothing in this order, and no determination made under this order, shall be construed as grounds for release of detainees covered by this order into the United States.

BARACK OBAMA

THE WHITE HOUSE,
March 7, 2011.

http://www.whitehouse.gov/the-press-office/2011/03/07/executive-order-periodic-review-individuals-detained-guant-namo-bay-nava

[Better Believe It]

11. Obama creates indefinite detention system for prisoners at Guantanamo Bay

Obama creates indefinite detention system for prisoners at Guantanamo Bay
By Peter Finn and Anne E. Kornblut
Washington Post Staff Writers
March 8, 2011

President Obama signed an executive order Monday that will create a formal system of indefinite detention for those held at the U.S. military prison at Guantanamo Bay, Cuba, who continue to pose a significant threat to national security. The administration also said it will start new military commission trials for detainees there.

The executive order recognizes the reality that some Guantanamo Bay detainees will remain in U.S. custody for many years, if not for life. The new system allows them the prospect of successfully arguing in the future that they should be released because they do not pose a threat.

"It is virtually impossible to imagine how one closes Guantanamo in light of this executive order," said Anthony Romero, executive director of the American Civil Liberties Union. "In a little over two years, the Obama administration has done a complete about-face."

Rep. Peter T. King (R-N.Y.), chairman of the House Homeland Security Committee, said the order vindicated Obama's predecessor. "I commend the Obama Administration for issuing this Executive Order," he said in a statement. "The bottom line is that it affirms the Bush Administration policy that our government has the right to detain dangerous terrorists until the cessation of hostilities."

Read the full article at:

http://www.washingtonpost.com/wp-dyn/content/article/2011/03/07/AR2011030704871.html?hpid=topnews

[blackspade]

21. Yuck.

When Peter King commends Obama, you know he has jumped the shark.

[VoteProgressive]

12. Another issue I wish had more outrage!

[swilton]

13. He gets away with it because he doesn't wear the GOP label

Our house needs cleaning

[Better Believe It]

17. Kick

[The Northerner]

18. K&R

[avaistheone1]

19. Sickening

k&r

[blackspade]

20. Obama now owns this policy

his political 'pragmatism' has overcome his common sense and decency.

[russspeakeasy]

22. I'll bet it's just that Obamas thought process is so far ahead of ours

that we couldn't possibly comprehend the bright future that
awaits us. I have been lied to and now I have been lied to by
the very best. He will not receive my time, my money, or my
vote.

[defendandprotect]

23. Ever more. . . the national security state --

we also have to understand the threat to our own citizens from these immoral and brutal

violations of our Constitution --





Rather, we should be overturning the National Security Act of 1947

(which laid the foundations for a national security state --
the new CIA intelligence agency gaining powers which were "almost unlimited --
a criticism of the CIA that Truman would echo much too late --
but soon after the assassination of Pres. John F. Kennedy.

Not verbatim, but that's from "JFK -- and the Unspeakable" by Douglass --
it goes on ...

Additionally, Top secret directive 6/18/48 NSC 10/2 which sanctioned US intelligence to carry
out a broad range of covert operations, "propaganda, economic warfare, preventive direct action,
including sabotage - on and on.

Since NSC 10/2 authorized violations of international law it also established official lying
as their indispensible cover -- "plausible deniability."
Plausible deniability combined lying with hypocrisy -- and encouraged the autonomy of CIA and
other covert action (intelligence) agencies from the government that created them.}

and, needless to say, the Patriot Act -- Homeland Security!

[pmorlan1]

24. K & R

I would have recommended your post but it was past the 24 hours. Thank you for posting.