President Obama has issued an Executive Order (pdf) ordering that "[t]he detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order." Rather than holding people indefinitely, for years on end, without any available legal recourse to bring a challenge based on innocence, we will now be reviewing each individual detainee's case. On the one hand, I'm glad to see that some detainees "shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals." This means that our system of justice will evaluate the evidence against the detainees, and sort out the guilty from the innocent.
On the other hand, however, the Executive Order leaves open the door for torture-obtained confessions to be used against other detainees when it says that for "any individuals currently detained at Guantánamo whose disposition is not achieved under [the subsections dealing with prosecution], the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals." This line seems to be hinting that they are leaving the door open to military commissions, similar to the awful system in place right now. Maybe I'm just being overly-cynical, due to the Justice Department's behavior over past eight years. Nonetheless, it seems suspicious that this Executive Order would leave room for an option other than (1) releasing/transferring the prisoners to another country, or (2) prosecuting them based on the evidence we have legally obtained.
In case you think that it's okay to create a third option, other than release/transfer or prosecution, I highly recommend reading up on Mohammad Jawad's case (pdf). It will give you a sense of the legal process the Guantánamo prisoners have been through so far. Even Jawad's former prosecutor (Lt. Col. Darrell Vandeveld) has been so disgusted with the man's treatment that he has resigned and written a sworn declaration in support of Jawad's Habeas petition.
UPDATE: Lt. Col. Darrell Vandeveld also wrote an op-ed for the Washington Post recently, titled "I Was Slow to Recognize the Stain of Guantanamo."
UPDATE II: It looks like I'm not the only one to see this. The Center For Constitutional Rights is similarly pleased with the Executive Order, but cautious about the provision I just highlighted:
The government has to charge the rest of the detainees in federal criminal court. There can be no third way, no new schemes for indefinite or preventive detention or alternative national security courts. Any move in that direction would discredit all of the new administration’s efforts in the eyes of the world.They also provide copies of the recently-issued Executive Orders:
- White House Executive Order: Closing Guantanamo Bay
- White House Executive Order: Ensuring Lawful Interrogations
- White House Executive Order: Review of Detention Policy
- White House Memorandum: Review of the Detention of Ali Saleh Kahlah al-Marri
UPDATE III: The Congressional Republicans who support torture and indefinite detention without charge are predictably raising the temperature of their fear-based demagoguery. According to Rep. Lamar Smith (R-TX), "Closing Guantanamo Bay presents a clear and present danger to all Americans"
Unsurprisingly, Rep. Smith voted to authorize the war in Iraq, voted for the USA PATRIOT Act, voted for the Military Commissions Act, and has received dismal ratings from pretty much every Civil Rights organization.
Rush Limbaugh has similarly argued that this was a "political" move, done at the expense of national security, and that "They're going to have to be held accountable in any future attacks as a result of this."
UPDATE IV: Here is video of the signing.
UPDATE V: In the last days of the Bush administration, you may have heard that the Pentagon informally declared that 61 former Guantanamo prisoners "returned to terrorism." Don't believe it. We've actually seen this song and dance before. The Pentagon had previously made the same claim, only to be embarrassed that their claim was faulty. This time around, unless you include "participating in an anti-Guantanamo documentary" and "having your lawyer write a critical op-ed" as "returning to terrorism," this is a pretty weak case to make.
Attorney Mark Denbeaux picks apart the claim here:
UPDATE VI: Michelle Malkin is a classic example of a torture apologist. She has gone so far as to write a horrible book in defense of the mass internment of Japanese citizens we sadly conducted earlier this century (for which, we have since apologized). She has been rightly criticized by historians, civil liberties advocates, and the Japanese American Citizens League for her "desperate attempt to impugn the loyalty of Japanese Americans during World War II to justify harsher governmental policies today in the treatment of Arab and Muslim Americans." Therefore, it's no surprise that she is still an awful human being.
UPDATE VII: According to conservative host Laura Ingraham, "our country is less safe today" because we have decided to actually charge the people we have imprisoned for years on end.
How is it that people like Laura Ingraham have so much faith that we have detained the right people, yet so little faith that we can put together a compelling case in court to that effect?
UPDATE VIII: Once again, that "61" number is flat-out wrong.
UPDATE IX: I have to agree with Steve Benen on this one. I really didn't expect to see this bizarre "NIMBY" talking point to become so prominent.
There was bound to be some pushback against Barack Obama's decision to close the military detention facility at Guantanamo Bay, but this isn't the one I was expecting.
Fox News personalities argued last week that the Obama would bring dangerous terrorists "to our soil, right here." Karl Rove argued over the weekend that Obama will change his mind about Gitmo because "there will be an uproar in the U.S." about detaining suspects on American soil. John McCain told Fox News yesterday, "I don't know of a state in America that wants them in their state. You think Yucca Mountain is a NIMBY problem? Wait till you see this one."Elana Schor reports that the most likely facility is the military's maximum-security prison in Ft. Leavenworth, Kansas -- which, by the way, is where Candidate McCain wanted to send the detainees when he endorsed closing Gitmo -- but that's facing resistance, too. Sen. Sam Brownback (R) and three House Republicans are pushing a measure that would prohibit the transfer of any suspects from Cuba to Kansas. (We're seeing a similar response from Republicans in South Carolina over the Charleston Naval Brig and Republicans in California over Camp Pendleton.)
I can appreciate the discomfort one might feel in the proximity of a psychotic religious fanatic, but as the Not-In-My-Backyard phenomenon goes, this is pretty silly.
As Glenn Greenwald explained the other day, there are already all kinds of suspected terrorists, including those associated with the 9/11 attacks, in federal detention right here on U.S. soil. As far as I can tell, no one much cares, and there have been no protests from conservative commentators, lawmakers, or activists about moving them out of the country.
I'm not even sure what the complaining is about, exactly. That the Gitmo detainees might break out of incarceration? If conservatives trust federal officials to administer a system of indefinite detention in Cuba, they should probably trust federal officials to keep the bad guys locked up effectively.
Some, meanwhile, have gone so far as to suggest that terrorists could be freed if their allies "crashed a plane into the prison to faciliate [sic] an escape."