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Obama Will Restart Military Commissions at Guantanamo, Sign Executive Order for Indefinite Detention

President Obama has announced that he will lift a two-year ban on military commissions for detainees at Guantanamo Bay, Cuba, and restart those trials immediately. Here’s the statement from the President:

“From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values. Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees. I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system – including Article III Courts – to ensure that our security and our values are strengthened. Going forward, all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation and the values that define who we are as a nation.”

First things first, this means that Barack Obama will not be the President who closes Guantanamo. The plan is to hold new trials there, so obviously the prison will not be cleaned out. It’s been over two years since the President signed an executive order to close Guantanamo.

Second, this is not just a way to “bring terrorists to justice.” It’s a way to hold onto detainees without charges. Included in this order is a procedure for indefinite detention of detainees at Guantanamo. Those deemed “too dangerous” to release, but where the government doesn’t have the evidence to convict, will simply be held in a cage for the rest of their lives, I guess. The executive order allows for a “periodic review” of those indefinitely detained, which was floated back in December. Here’s what I said at the time:

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.

I see nothing in the order that would make me alter that analysis.

In a statement, Defense Secretary Robert Gates rescinded his order against new military commissions at Guantanamo. Basically, there will be multiple avenues for detainees – trial in an Article III court, a military commission, or indefinite detention. This will not be based on anything but the level of evidence that the Administration has. They will ensure that nobody they don’t want leaving the island leaves – it amounts to kangaroo courts.

In the executive order, it says that the Secretary of State “shall evaluate humane treatment assurances in all cases,” consistent with the recommendations of the President’s Task Force on Interrogations and his anti-torture executive order from 2009. I wonder if that all applies to Bradley Manning.

I’m sure Marcy will have more on this. Suffice to say that there is pretty much no material difference between detention policies in the Bush Administration and this one, at this point.

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David Dayen

David Dayen