Human Rights

Obama Issues Significant Executive Order to Ensure Legal Reviews for Guantanamo Detainees

It doesn't go far enough, but Obama's Executive Order is an important step towards restoring the rule of law to a prison that was created entirely to flout the Constitution.

From the very beginning, the Bush administration conceived of Guantanamo Bay as a law-free zone -- a place where detainees could be kept far beyond the reach of any court of law. When the Supreme Court  rejected President Bush's claim that Gitmo is immune from the law, his allies in Congress promptly created a sham military tribunal system that allowed Bush to   string out detentions indefinitely. When the Supreme Court shot down this new assault on the Constitution, a compliant GOP Congress responded by attempting to strip the courts of jurisdiction over Gitmo detainees. And three years after the Supreme Court rejected this latest attempt to circumvent the Constitution, 172 detainees are still caught in limbo at Guantanamo Bay. Against this backdrop, President Obama released a new Executive Order on Monday providing a new process to ensure that detainees receive periodic legal reviews to determine whether they actually belong at Guantanamo Bay. This order is hardly the ideal solution, but it is an important step towards restoring the rule of law to a prison that was created entirely to flout the Constitution.


The Executive Order provides a number of important legal checks to ensure that terrorists remain behind bars while detainees who pose no real threat to the United States have an opportunity to show that they should be released. The  order  expressly affirms that "[d]etainees at Guantanamo have the constitutional privilege of the writ of habeas corpus." While this merely restates Obama's policy from an   earlier Executive Order (and that of the Supreme Court), it is an important symbolic statement in light of Bush's long history of constitutional defiance. Additionally, the order provides a legal standard governing military proceedings governing detainees -- it says detention will only last so long as it is "necessary to protect against a significant threat to the security of the United States." As the Center for American Progress'  Ken Gude explains, "That may sound vague, but having one defined standard is a huge improvement on the previous system in which the standard varied from detainee to detainee and no one knew what it was." Perhaps most importantly, the order ensures that detainees' detention status will be periodically reviewed in a process where the detainee will be represented by an advocate who will present evidence in their favor. Each detainee will receive an initial review before a "Periodic Review Board" within the next year. If this initial review determines that they should remain subject to detention, the detainee's status will be reexamined in written reports every six months and in a full review board proceeding every three years.


Obama's new Executive Order is a step in the right direction, but it does not go far enough. Lest there be any doubt, the civilian court system is the best -- and most frequently utilized -- forum for  cases involving suspected terrorists. Between 2001 and 2009, criminal courts convicted  more than 200 individuals on terrorism charges, while military tribunals only managed to convict three people. Moreover, it's not even clear that military tribunals issue harsher sentences than civilian courts. The most high-profile tribunal sentenced Osama bin Laden's former driver to  only five additional months in prison. Yet the Obama administration's attempts to process detainees through America's time-tested legal system have consistently been met with fearmongering and lies. When the administration attempted to relocate Gitmo detainees into maximum security prisons within the United States, it was met with redfaced cries from lawmakers claiming that "Americans do not want terrorists in their backyard." Guantanamo detainees were painted as supervillians capable of breaking free from the very same prisons that house murders and rapists and launching a campaign of terror against local communities. More recently, Congress enacted a  ban on any Department of Defense funding being used to transfer Gitmo detainees for trial within the United States -- with Congressional Democrats doing little more than cowering in fear before voting for this absurd right-wing proposal. As a result of this fearmongering and the inexcusable laws it has produced, the President's hands have -- at least in part -- been shackled by a Congress motivated more by fear than by a desire to make good law.


During his first year in office, Obama warned that Gitmo became a symbol that likely enabled Al Qaeda to   recruit more terrorists than Gitmo ever detained. President Bush's former Secretary of State Colin Powell warned more than four years ago that  "Guantanamo has become a major, major the way the world perceives America and if it were up to me   I would close Guantanamo not tomorrow but this afternoon." Both men are still correct. Despite significant improvements, every day that Guantanamo remains open is another day that America's enemies can point to it as a sign of how it mistreated its captives during the Bush era -- the overwhelming majority of whom were  innocent of any wrongdoing whatsoever. Obama's new Executive Order takes important steps towards bringing the rule of law to this blight upon our moral credibility, but it is no substitute for our fair and fully-capable justice system.

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