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UPDATE: Obama adopts plan for Guantanamo

UPDATE Thursday at midday:  President Obama on Thursday signed into effect the Executive Order directing the closing of the detention facilities at Guantanamo Bay, Cuba.  The final Order, containing his signature, is here.  A comparison of the final version with the draft that is discussed below shows only stylistic or minor clarifying changes, so the points made in this post may be understood to apply to the final Order.


NOTE TO READERS:  The draft of President Obama’s draft Executive Order on the fate of the Guantanamo Bay prison camp and the detainees there is now available, here.  As a result, the following is a full report, separate from an earlier post covering overnight developments on detainee matters.


President Obama is considering a plan, with three distinct stages, for closing the U.S. military detention camp at Guantanamo Bay, Cuba.  A draft of an Executive Order circulating in Washington on Wednesday revealed a plan for, first, a full-scale review of the case of each of the remaining 245 or so prisoners; second, relocation of the prisoners either to the U.S. or to foreign countries with full release for some, and, third, prosecution of some — though not necessarily in regular civilian courts — for terrorist-related crimes.

In the meantime, the Order indicated, the government would extend full protection under all humane treaties on prisoners’ rights for those still at Guantanamo, indicating an end to any harsh treatment in violation of four aspects of the Geneva Convention.  Secretary of Defense Robert Gates would be assigned to “immediately undertake a review of the conditions of detention at Guantanamo to ensure full compliance with this directive.  Such review shall be completed within 30 days and any necessary corrections implemented immediately thereafter.”

The order would put a temporary stop to all prosecutions for war crimes at “military commissions” now operating at Guantanamo — a halt that the President had already ordered within hours after he was inaugurated on Tuesday.  As many as 80 detainees potentially face such trials; so far, there have been only two trials (both resulting in convictions) and one guilty plea.

It was not clear when the new President would sign any such Order, although the draft indicated it could be in January. It also was not clear what review process the draft will go through before it would be signed or what changes, if any, might be made.

An early and perhaps immediate  question arose over pending court cases: whether the review process the President apparently is ready to mandate would go on simultaneously with review in U.S. District Courts of the detainees’ habeas challenges to continued confinement, or would lead to delays or other interruptions in those proceedings.  The same government agencies given the task of reviewing each detainee’s situation have been involved in preparing the materials that go into the habeas proceedings, which are just getting started before some of the District judges.  It is unclear how the courts might react. The D.C. Circuit Court already has under advisement a half-dozen major test cases on detainees’ rights — including the question of whether any detainees could be brought into the U.S. under existing laws. Some 200 habeas cases are in varying stages in District Courts.  (UPDATE: One U.S. District judge, Reggie B. Walton, later Wednesday issued an order suspending all habeas cases pending before him, and ordered the government to file by Feb. 4 “a status report…as to how it intends to proceed in these cases.”)

Human rights groups immediately hailed the Obama draft plan, though there was some criticism of the timetable for closing Guantanamo. The closure, the key paragraph read, should come “as soon as practicable, and no later than one year from the date of this order.”

Four other aspects of the draft may cause concern among detainees’ lawyers and human rights groups.  First, it made no mention whatever of the situation of about 650 detainees now being held by the U.S. military at a prison at Bagram airbase in Afghanistan — an issue also pending in U.S. District Court; second, it made no mention of the fate of the one detainee who was captured inside the U.S. and remains confined within the country — a detainee whose case is now awaiting review in the Supreme Court; third, it raised a question whether “it is feasible to prosecute” any crimes detainees may have committed under regular courts — the civilian courts created under the Constitution’s Article III — and thus opened the possibility of proceedings where the accused may have fewer rights than in those courts; and, fourth, it left open for future decision what might happen to detainees who could not be released or transferred to other countries, and could not be prosecuted and yet would not be deemed free to go.  It suggested a possibility that some detainees might be brought to “facilities within the United States,” and suggested possible new legislation, but went no further.

The draft seemed to anticipate criticism of the potential one-year deadline for closing Guantanamo, saying at one point: “Merely closing the facility without promptly determining the appropriate displosition of the individuals would not adequately serve [national security and foreign policy intersts and interests of justice]. To the extent practicable, the prompt and appropriate disposition of the individuals should precede the closure of the detention facilities at Guantanamo.”

The detainee-by-detainee review process that the Order would set up would be led primarily by the Attorney General, but would also involve other civilian and military and intelligence agencies and officials.  There was no indication in the Order of the standard that would determine whether a detainee should be released, transferred or prosecuted.  It made no mention of the controversial standard the Bush Administration has used to justify detentions — that is, designation of a prisoner as an “enemy combatant.”

The Order spoke in terms of case-by-case review on “a rolling basis,” but did not indicate which detainees might have priority of review.

A final paragraph — standard in government programs establishing review procedures — said the Order would not create for any individual any “right or benefit, substantive or procedural,” that could be enforced against the U.S. government and its officials.  That paragraph, however, would not affect the constitutional right for detainees to pursue habeas challenges to their continued confinement, because that right has been laid down by the Supreme Court and could be altered or abolished only by constitutional amendment.  But that paragraph might well set up legal barriers to enforcing particular dispositions ordered after the review procedure.