When Will Obama Close the Guantanamo Bay Prison?

Now that the Obama administration has confirmed that it will retool and revive that controversial military tribunals to prosecute terrorism suspects, one glaring question remains: When will Obama close the Guantanamo Bay prison? During his first week in office, President Obama issued an executive order that directs a team of experts to devise a plan to close to prison by January 2010. The revival of the military courts, however, complicates this issue.

Many Legal Issues
Even though Obama's January executive orders included a carefully worded loophole that contemplated the possible use of military courts, his decision to use the tribunals has angered civil libertarians. Most of the progressive voters in the Democratic Party lambasted Hillary Clinton, whom they believed offered "more of the same," and they constructed Obama as a leftist dream come true.

Although progressives exaggerated Obama's leftist credentials, he offered enough teasers to win their trust. For example, Obama's campaign disparaged the use of military courts and repeatedly praised the ability of the ordinary federal courts to prosecute terrorism suspects. As a good lawyer, Obama left room for the possible use of reformed military courts, but this qualification certainly was not the loudest element of his campaign.

Thus far, Obama's proposed reform of the military courts does not seem to make dramatic changes over the previous system used by Bush. Although Obama says he will limit the use of hearsay evidence to situations where the court concludes it is "reliable," Bush used the same standard. Under Bush's rules, however, the burden rested with the defendant to disprove the reliability of hearsay evidence; Obama's reform would place the burden on the government. Nevertheless, if the military courts use a low standard to evaluate the reliability of hearsay evidence, then this "reform" might not differ much at all from the old system.

Obama has also stated that the new rules will not permit the use of evidence collected through torture and other abusive methods. According to an article published by the Associated Press, however, Bush never relied upon tainted evidence to prosecute individuals, even though his rules authorized him to do so.

No Prosecutions in the Near Future
Regardless of the ultimate content of Obama's new procedural rules, the military courts will probably not become operational in the near future. In fact, Obama will soon order an additional 120-day freeze on proceedings in the military tribunals. The original stay will expire on May 20.

Before any prosecution can occur, the President must spell out the reforms he wishes to make. Also, Congress needs to pass legislation implementing the changes. Furthermore, courts must preside over the inevitable litigation challenging the constitutionality of the Obama's military tribunals. These factors will likely result in a considerable delay in the use of the military tribunals.

Possible Impact on Guantanamo Bay Closure
While the legal process concerning the military tribunals takes place, the deadline on Obama's promise to close the Guantanamo Bay prison could expire. Although the president could extend the time period for closing the facility, he might also consider abandoning the closure plan altogether.

Both Obama and Secretary of Defense Robert Gates have stated that some detainees that the government deems "dangerous" are unsuitable for transfer to other countries and are too risky for prosecution (due to insufficient evidence). An overlooked provision (Section 4(c)4) of Obama's executive order regarding Guantanamo Bay anticipates this category of detainees.

In March, the Washington Post reported that officials in the Department of Justice were considering whether to "create a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." At the time, this concept seemed vague, but recent media reports indicate that the government will likely seek to detain these individuals indefinitely, adhering to another one of Bush's most criticized policies. Furthermore, the revival of the military tribunals means that the government has decided not to limit prosecution to "regular courts," as the Washington Post article suggests.

Members of Congress, however, do not want terrorism suspects prosecuted or detained within the United States. If Congress wins this battle, then Obama must continue to hold the detainees at Guantanamo Bay or at another United States-controlled facility located outside of the country.

Although Obama has promised to close the Guantanamo Bay detention center, he could later revisit this decision. Earlier this year, the Department of the Navy completed a study, ordered by Obama, which found that the Guantanamo Bay prison complies with the Geneva Conventions. Although many civil liberties lawyers dispute this finding, Attorney General Holder subsequently visited the facility and gave it a favorable review as well. Due to the constraints that Obama now faces, a decision to keep the Guantanamo Bay prison open beyond January 2010 (or even longer) does not seem completely "off the table."

GITMO: Why Is Obama Closing Such a Professional, Lawfully Run Facility?

Before his inauguration, President Obama announced that once he took office he would immediately start the process of closing the Guantanamo Bay detention center. The detention center has received deep criticism from domestic and foreign human rights advocates, civil liberties activists, and from liberal politicians. Many commentators have argued that Obama's election will allow the United States to move beyond its damaged global reputation because Obama will remedy civil liberties violations and end practices such as indefinite detention, "harsh" interrogations, and other procedural harms that gave Bush and the country a bad reputation in many parts of the world.

During his first week in office, Obama lived up to his promise and issued an executive order which requires the closure of the Guantanamo Bay detention center within one year. But the administration's position regarding the detention center has evolved tremendously this week as a result of two major developments.

First, Admiral Patrick Walsh of the Navy completed a review of the facility, which Obama commissioned. The Walsh report concludes that the detention facility complies with the Geneva Conventions. Walsh makes minor recommendations for improving the lives of detainees, such as giving certain "dangerous" individuals more outdoor recreation time. Human rights activists have condemned the report.

Second, Attorney General Holder has just completed a tour of the facility, and he also gives it a favorable review. Holder says that he is "impressed" by the "professionalism" of the staff at the facility. Holder also says that he did not witness any mistreatment of detainees. Instead, Holder says that he "saw a conscious attempt by those guards to conduct themselves in an appropriate way." Perhaps a visit by the Attorney General of the United States caused them to exhibit their best behavior. Everyone wants to impress the boss (or the boss's lawyer), right?

Question: If the Guantanamo Bay detention center is legally and professionally run, why is Obama closing it? I suspect that the decision to close the detention center has a lot to do with the president's campaign promises and the utter contempt that many liberals have for the facility.

But the decision to close the center could also form part of a broader strategy to send detainees to Bagram Air Force Base in Afghanistan where, arguably, they would not qualify for habeas corpus (like Guantanamo Bay detainees). The Obama administration has already embraced Bush's position that detainees at Bagram are not entitled to habeas corpus and that the government can try them in military commissions. Also, Holder and Solicitor General Elena Kagan have both argued that the United States can indefinitely detain Al Qaeda suspects, regardless of whether they were caught on the battlefield. CIA Director Leon Panetta has also said that the CIA will continue the practice of rendition, a program which transfers individuals to other countries without the formal procedures associated with extradition. Combining all of these powers, Bagram could end up becoming Obama's GITMO.

Signs of Life: Human Rights Groups Contest Pentagon Report on Guantanamo Bay

Last week, the Pentagon released a report -- commissioned by President Obama -- which concludes that the Guantanamo Bay detention facility complies with the Geneva Conventions. During the Bush administration, human rights activists passionately contended that the treatment of detainees at the facility violated domestic and international law.

The New York Times reports that the Center for Constitutional Rights and Amnesty International (two vocal critics of Guantanamo Bay) have blasted the report. The organizations played a large role in condemning Bush's policies at the detention facility, and the Center for Constitutional Rights represents several detainees.

Here's a clip from the article:

The Pentagon official who inspected the Guantánamo Bay prison at the behest of President Obama and declared its conditions humane described himself Monday as a “fresh set of eyes” who had been given free rein to go about his work.

But detainees’ lawyers and human rights groups ridiculed the 85-page report that the official, Adm. Patrick M. Walsh, sent to the White House this weekend. They called it a public relations gesture by the new administration to try to quiet criticism of the prison while officials work to close it within a year.

“There is no basis to believe, other than his say-so, that this was an independent report,” said Vincent Warren, executive director of the Center for Constitutional Rights.

Coming in the early days of the Obama administration, the exchange was notable for its similarity to the back-and-forth during the Bush years over what the Guantánamo prison is really like.

The article reports that the Pentagon prepared the study by conducting "random visits and interviews with detainees, guards, interrogators and commanders." Also, the author, Admiral Patrick Walsh, "is the vice chief of naval operations, and the prison is on a naval base at the southeastern tip of Cuba." These factors undermine the credibility of the study. The article reports that human rights attorneys have released their own study based on interviews with their clients; the human rights report makes dramatically different findings than the Pentagon study.

I wonder how "liberal" bloggers who have accused progressive critics of Obama's terrorism-related policies of being anti-liberal will react (if at all) to the latest news.

Attorney General Holder Visits Guantanamo Bay After Pentagon Report Declares That Detention Facility Complies With Geneva Conventions

Last week, the Pentagon released a study which concludes that the Guantanamo Bay detention facility complies with the Geneva Conventions. During the Bush administration, however, human rights groups maintained that the treatment of detainees fell short of domestic and international law.

Attorney General Eric Holder is now visiting the facility to help design a strategy for closing it. In January, President Obama issued an executive order which requires the closure of the detention center within one year. It is unclear where the government will detain individuals once it closes the facility and whether, if prosecuted, they will receive trials in federal courts for alleged criminal activity.

Both Holder and Solicitor General Elena Kagan, however, have insisted that the government can indefinitely detain Al Qaeda members. The Department of Justice also agrees with the Bush administration's position that the reasoning of a 2008 Supreme Court ruling that allows Guantanamo Bay detainees to contest their detention before a federal court does not apply to the Bagram military base in Afghanistan because it is in the "theater of war" and because presenting detainees before a federal court would be infeasible.

Together, these two arguments could justify a policy of indefinite detention of terrorism suspects at Bagram, even as the government closes the maligned Guantanamo Bay facility. It remains unclear, however, whether the Obama administration will actually replicate Bush's policies by shifting the policy of prolonged detention to Afghanistan and away from Guantanamo Bay. Nevertheless, his administration has certainly embraced legal positions that lay the foundation for the continuation of these practices, which generated very passionate criticism from the Left during Bush's presidency.

Two Important Terrorism Updates...But You've Heard Them Before

FIRST
Today, the Obama administration decided to maintain the Bush adminstration's legal position, which asserts that individuals detained at the Bagram Air Force Base near Kabul, Afghanistan do not have a right to seek judicial review of their detention. The Department of Justice argues that, unlike Guantanamo Bay, the base is located in the "theater of war" and this makes judicial review impracticable." Also, the government argues that the Bagram detainees are not entitled to habeas corpus because they are subject to the Military Commissions Act of 2006 -- a statute that Obama denounced.

This military base is not subject to Obama's executive orders which require the review and subsequent closure of Guantanamo Bay. Also, the facility is not a longterm CIA prison which the executive orders also require the government to shutter. Presumably, the government can indefinitely detain individuals at Bagram -- rather than Guantanamo Bay -- without judicial review. Solicitor General Elena Kagan and Attorney General Eric Holder essentially validated this position when they endorsed indefinite detention of terrorism suspects during their confirmation hearings.

SECOND
Obama's executive orders create a task force to study Guantanamo Bay and then subsequently to close it. Today, the Pentagon, responding to a request by President Obama, released an 85-page report which concludes that the maligned facility complies with the Geneva Convention. During the Bush administration, many individuals in the human rights community passionately disputed this position.

While the study finds that the facility complies with international law, it concludes that some of the more dangerous individuals should now receive play time:

The report recommended some changes, including an increase in group recreation for some of the camp's more dangerous or less compliant prisoners, according to a government official familiar with the study. The report also suggested allowing those prisoners to gather in groups of three or more, said the official, who spoke on condition of anonymity because the report has not officially been released.

FINAL WORD
I have written many articles which track the similarities between Bush's and Obama's anti-terrorism policies. For the record, I do not necessarily disagree with some of these practices. For example, I have argued that the government should probably receive wide latitude to invoke the state secrets privilege and that courts should defer to the government's conclusion that a potential item of evidence qualifies for the privilege.

Also, asserting executive authority to do a particular act, does not mandate the use of such power. So, even if the government believes it can detain terrorism suspects indefinitely, this does not mean that it will.

My purpose for engaging this subject arises from my belief that the Left must hold consistent positions and that it must rethink the uncritical approach it took with respect to Obama during the Democratic primaries and the general-election campaign. If McCain (or probably even Clinton) had won the election and began validating Bush's policies, my fellow liberals would condemn him as Bush III.

In order for our arguments to have legitimacy, we must remain consistent or explain why we shift. If progressives now believe that they overreached in condemning Bush, they should make this clear. If progressives simply wanted to drum Republicans out of power, they have made a mockery of the very values they claim to embrace. Criticism and consistency, rather than partisan defense of "our" candidate, can permit greater accountability. Silence and acquiescence do not. I hope I am not the lone progressive who sees this. Ok - that was a melodramatic ending. And for the record, outside of Ron Paul, I have not seen many conservatives criticize other conservatives for not taking Bush to task on his extravagant fiscal policies.