Last week, the Pentagon released a study which concludes that the Guantanamo Bay detention facility complies with the Geneva Conventions. During the Bush administration, however, human rights groups maintained that the treatment of detainees fell short of domestic and international law.
Attorney General Eric Holder is now visiting the facility to help design a strategy for closing it. In January, President Obama issued an executive order which requires the closure of the detention center within one year. It is unclear where the government will detain individuals once it closes the facility and whether, if prosecuted, they will receive trials in federal courts for alleged criminal activity.
Both Holder and Solicitor General Elena Kagan, however, have insisted that the government can indefinitely detain Al Qaeda members. The Department of Justice also agrees with the Bush administration's position that the reasoning of a 2008 Supreme Court ruling that allows Guantanamo Bay detainees to contest their detention before a federal court does not apply to the Bagram military base in Afghanistan because it is in the "theater of war" and because presenting detainees before a federal court would be infeasible.
Together, these two arguments could justify a policy of indefinite detention of terrorism suspects at Bagram, even as the government closes the maligned Guantanamo Bay facility. It remains unclear, however, whether the Obama administration will actually replicate Bush's policies by shifting the policy of prolonged detention to Afghanistan and away from Guantanamo Bay. Nevertheless, his administration has certainly embraced legal positions that lay the foundation for the continuation of these practices, which generated very passionate criticism from the Left during Bush's presidency.