President Obama, who had sought to close the detention facility at Guantanamo Bay within one year of his January 2009 inauguration, issued an executive order March 7 signaling that the facility will remain open indefinitely with a new review policy for detainees and also announced the resumption of trials before military commissions.

The president said that his actions will “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,” he emphasized.

The periodic review requirements apply to detainees who have been designated for continued detention under the law of war or have been referred to prosecution. Each will receive an initial review before a Periodic Review Board (PRB), followed by a full review every three years and a paper review every six months if the PRB determines the detainee should continue to be detained. A representative will be provided by the government to advocate for the detainee before the PRB, and the detainee also will be allowed to retain private counsel who has the proper security clearances.

The standard for continued detention for those subject to periodic review is met if it is “necessary to protect against a significant threat to the security of the United States.”

If a final determination is made that a detainee no longer constitutes such a threat, the executive order provides that the secretaries of State and Defense are to identify a suitable transfer location outside the United States, consistent with national security and applicable law and U.S. foreign policy interests.

In action toward reviving military commissions, the secretary of Defense rescinded the suspension that has been in place for the past two years while the administration was reviewing detainee policy. P.L. 111-84, defense authorization legislation enacted in October 2009, made changes in the military commission system, including the exclusion of statements obtained by torture or cruel, inhuman or degrading treatment.

The Obama administration’s attempts to try detainees in federal civilian courts have been thwarted by Congress, which passed legislation prohibiting the Defense Department from using its funds to transfer Guantanamo detainees into the United States for any reason, including prosecution.

The ABA, which has no policy on closing Guantanamo, vigorously supports prosecution in Article III courts of detainees charged with criminal violations, unless the attorney general certifies that prosecution cannot take place before such courts. The ABA also supports transfer or release of detainees who are not enemy combatants.

 

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