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The Obama Indefinite Detention Regime

By now you’ve probably heard about the White House’s proposed executive order for indefinite detention for at least 48 Guantanamo detainees it has determined cannot be put on trial. The order would provide reviews of evidence by judges, but it does appear that the White House would control that process of evidentiary review, rather than any statutory law. And if that’s not a habeas corpus review, I don’t know what that process would really consist of.

But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

Nearly two years after Obama’s pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.

That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.

Charlie Savage calls this periodic review something like a parole board, which would determine whether the detainee can be transferred to another country or whether they represent a continued threat.

The upshot of all this would be a non-trivial number of detainees spending the rest of their lives in the custody of the United States without being charged with a crime. The White House will undoubtedly portray this as a moderate compromise, allowing for periodic review and access to an attorney for the detainees. But everyone knows the end result here: the reviews will not rise to the level of a real habeas proceeding, and will probably look a lot like the Combatant Status Review Tribunals of the Bush Administration. Maybe they’ll be improved somehow, and the proposal includes access to a lawyer and some of the evidence. But you’re still talking about a class of detainees who “cannot be tried,” in the eyes of the Administration.

If the Supreme Court didn’t rule in Boumediene, there probably wouldn’t even be any periodic review. And I can’t really see what would change in terms of the threat level of the detainee if he’s been sitting in a prison cell. One example given is that Yemeni detainees could be allowed to return home if the security situation improves there.

I would rather this remain as an executive order than through a statute; at least it would be easier to overturn that way. But I don’t think any future President would choose to overturn it, and a statute could come anyway in a new, more conservative Congress. This is basically indefinite detention, an unheard-of policy prior to 9-11, with a bit of a smiley face. And to those who say this is limited to the 48 detainees designated for indefinite detention right now, here’s Tom Malinowski:

Tom Malinowski, the Washington advocacy director for Human Rights Watch, said such an order could provide additional safeguards for those prisoners who are already being held in as wartime detainees, but worried that it could be used to entrench the idea of detention without trial.

“My sense and my hope is that it would be limited to the detainees whom Obama inherited from the Bush administration, rather than serving as a permanent regime for the detention of anyone the government may decide is dangerous in the future,” he said.

Consider the detention of Bradley Manning, in solitary confinement without being charged with a crime. There’s been credible speculation that Manning is being held to break him and give up some information about Julian Assange. I just think this will become more of the norm, especially with a codified indefinite detention standard.

And that does violence to the values written into the founding documents, particularly the specific attention on fair trials.

Jameel Jaffer, a national security lawyer at the American Civil Liberties Union, agreed that “more review is better.” But he said that an executive order would only “normalize and institutionalize indefinite detention and other policies,” that were set in place by the Bush administration.

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David Dayen

David Dayen