Tuesday, March 8, 2011;
At the start of his administration, Mr. Obama called for the prison's closure. Two years later, that goal appears as far out of reach as ever, thanks largely to unconscionable congressional restrictions that have hampered his ability to prosecute or transfer detainees. Mr. Obama shares in the blame for not fighting aggressively to reverse this regrettable intrusion.
The administration thus finds itself with 172 detainees at Guantanamo, 47 of whom it has determined cannot be tried but are too dangerous to release. Thanks to a 2008 Supreme Court decision, all detainees are entitled to a federal court review of their incarceration. Legal checks and balances end there, meaning that a detainee could face indefinite detention without subsequent review of his case. Mr. Obama's executive order rightly provides such detainees with significant legal protections to guard against unjustified continued imprisonment, and it authorizes the resumption of military commssions, which were significantly improved in 2009.
The order establishes periodic review of these detainees' cases; every detainee is entitled to a "live," full-fledged evaluation within one year of the executive order. Those deemed to pose a significant risk to U.S. national security will continue to be held; a review of the detainee's file will be conducted every six months thereafter, with another full-fledged assessment guaranteed after three years. A panel of officials from across the administration, including the Defense, State and Justice departments, will conduct reviews. Under the Bush administration, such panels were staffed by military personnel. The order also guarantees each detainee a personal representative and the right to retain a lawyer as long as government funds are not used to pay for such services. Detainee lawyers with appropriate security clearances will be permitted to view certain classified information; detainees themselves will be privy to some unclassified versions of evidence, which they will be allowed to rebut by, among other things, calling witnesses.
The president's order is commendable in many respects and should allay some of the concerns involving detention without trial. But review by executive branch panels is no substitute for truly independent evaluations by the courts. And the president's order applies only to detainees now held at Guantanamo, making no provision for future detainees.
Finally, executive orders can be reversed on a whim, or by a future president. The country would be better served by a permanent legal framework that allows the president to detain certain terrorism suspects, subject to exacting judicial review and robust legal protections. We understand Mr. Obama's reluctance to seek such legislation from a Congress that too often has acted irresponsibly on this issue. But half-measures such as this executive order leave at risk both civil liberties and the country's ability to aggressively prosecute the fight against terrorism.