Saturday, May 16, 2009

When Will Obama Close the Guantanamo Bay Prison?

Now that the Obama administration has confirmed that it will retool and revive that controversial military tribunals to prosecute terrorism suspects, one glaring question remains: When will Obama close the Guantanamo Bay prison? During his first week in office, President Obama issued an executive order that directs a team of experts to devise a plan to close to prison by January 2010. The revival of the military courts, however, complicates this issue.

Many Legal Issues
Even though Obama's January executive orders included a carefully worded loophole that contemplated the possible use of military courts, his decision to use the tribunals has angered civil libertarians. Most of the progressive voters in the Democratic Party lambasted Hillary Clinton, whom they believed offered "more of the same," and they constructed Obama as a leftist dream come true.

Although progressives exaggerated Obama's leftist credentials, he offered enough teasers to win their trust. For example, Obama's campaign disparaged the use of military courts and repeatedly praised the ability of the ordinary federal courts to prosecute terrorism suspects. As a good lawyer, Obama left room for the possible use of reformed military courts, but this qualification certainly was not the loudest element of his campaign.

Thus far, Obama's proposed reform of the military courts does not seem to make dramatic changes over the previous system used by Bush. Although Obama says he will limit the use of hearsay evidence to situations where the court concludes it is "reliable," Bush used the same standard. Under Bush's rules, however, the burden rested with the defendant to disprove the reliability of hearsay evidence; Obama's reform would place the burden on the government. Nevertheless, if the military courts use a low standard to evaluate the reliability of hearsay evidence, then this "reform" might not differ much at all from the old system.

Obama has also stated that the new rules will not permit the use of evidence collected through torture and other abusive methods. According to an article published by the Associated Press, however, Bush never relied upon tainted evidence to prosecute individuals, even though his rules authorized him to do so.

No Prosecutions in the Near Future
Regardless of the ultimate content of Obama's new procedural rules, the military courts will probably not become operational in the near future. In fact, Obama will soon order an additional 120-day freeze on proceedings in the military tribunals. The original stay will expire on May 20.

Before any prosecution can occur, the President must spell out the reforms he wishes to make. Also, Congress needs to pass legislation implementing the changes. Furthermore, courts must preside over the inevitable litigation challenging the constitutionality of the Obama's military tribunals. These factors will likely result in a considerable delay in the use of the military tribunals.

Possible Impact on Guantanamo Bay Closure
While the legal process concerning the military tribunals takes place, the deadline on Obama's promise to close the Guantanamo Bay prison could expire. Although the president could extend the time period for closing the facility, he might also consider abandoning the closure plan altogether.

Both Obama and Secretary of Defense Robert Gates have stated that some detainees that the government deems "dangerous" are unsuitable for transfer to other countries and are too risky for prosecution (due to insufficient evidence). An overlooked provision (Section 4(c)4) of Obama's executive order regarding Guantanamo Bay anticipates this category of detainees.

In March, the Washington Post reported that officials in the Department of Justice were considering whether to "create a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." At the time, this concept seemed vague, but recent media reports indicate that the government will likely seek to detain these individuals indefinitely, adhering to another one of Bush's most criticized policies. Furthermore, the revival of the military tribunals means that the government has decided not to limit prosecution to "regular courts," as the Washington Post article suggests.

Members of Congress, however, do not want terrorism suspects prosecuted or detained within the United States. If Congress wins this battle, then Obama must continue to hold the detainees at Guantanamo Bay or at another United States-controlled facility located outside of the country.

Although Obama has promised to close the Guantanamo Bay detention center, he could later revisit this decision. Earlier this year, the Department of the Navy completed a study, ordered by Obama, which found that the Guantanamo Bay prison complies with the Geneva Conventions. Although many civil liberties lawyers dispute this finding, Attorney General Holder subsequently visited the facility and gave it a favorable review as well. Due to the constraints that Obama now faces, a decision to keep the Guantanamo Bay prison open beyond January 2010 (or even longer) does not seem completely "off the table."


The People's Program said...

2 shockers in about as many days. First the refusal to release the terror photos and now this.

Extreme individuals need to be brought to justice by any means necessary. The freedom which is afforded to all law-abiding citizens is a product of doing what might not be popular but what is right for the U.S. and its interests. If the ACLU attorneys always had their way we would live in anarchy. A nation of people with their own individually-decreed laws.

Congrats Mr. President. You went 2 for 2 this week :)


Darren Lenard Hutchinson said...

Ryan, the U.S. Constitution protects law-abiding citizens and lawbreakers. Most importantly, it requires proof that someone in fact a lawbreaker, rather than a simple statement by the government. The Bill of Rights, which liberals and conservatives both cite with pride, contains rights that relate primarily to criminal procedure and punishment.

The ACLU does not favor anarchy. Instead, it favors the rule of law. People love to beat up the ACLU, but in its history, the ACLU has resisted sedition laws that infringe speech, opposed laws banning interracial marriage, and it even defedended Rush Limbaugh when prosecutors tried to get his medical records to investigate the facts surrounding his use of painkillers. Rush's defense lawyer undoubtedly followed precedent litigated or supported by the ACLU.

denise b said...

Without the ACLU you can kiss the Bill of Rights goodbye.

Real Time Analytics