Dispatches from the Creation Wars

Dafna Linzer at ProPublica reports on the new executive order from President Obama that explicitly endorses indefinite detention and is a virtual carbon copy of the Bush policies.

President Obama yesterday formalized indefinite detention for dozens of men held at Guantanamo Bay and announced that the Pentagon would move ahead with military trials for a handful of other detainees.

In an executive order, which we first reported on in June 2009, the White House created a board to periodically review the dangerousness of prisoners being held without charge or trial. The order says the new process will allow detainees — some in custody for nearly a decade — to challenge the government’s determination that they pose a threat if released.


But in fact, this changes very little from what Bush did:

While the order is new, most of the ideas [3] it contains are not. This is the third time such a board has been created for nearly the same purpose. Two similar processes to review detainee cases were in place during the Bush administration. Like its predecessors, the Obama administration’s review process will operate outside the courts and will be subject to no independent review. Also like the Bush White House, the Obama administration alone will choose all members of the review board and appoint a “personal representative” to advocate on behalf of the detainees.

The major difference is that the White House, sidestepping claims that detainees have a right to counsel, will allow them to hire private attorneys The order states that the government will not pay legal fees. While detainees will have access to some evidence against them, the government will choose what evidence to share. The process is meant to be more adversarial than it had been under the Bush administration. Detainees can submit their own evidence to the review board but will be permitted to call only those witnesses the government determines to be reasonable. It is unclear whether a detainee can dismiss his personal representative or how the lawyer and representative will work together. The order allows a detainee to make his case for release once every three years.

But of course, many of the detainees already have attorneys representing them (pro bono, of course) and have been granted habeas corpus hearings in actual courts with actual due process. And the government’s record in those cases is rather abysmal. Given normal rules of evidence and normal due process procedures, most of those cases have resulted in the court concluding that there is not enough evidence to justify the detention and the government has been ordered to release about 80% of them.

These review panels are even worse than the military tribunals in that they offer no real due process at all. Allowing someone to have a private attorney means nothing if that attorney can’t call the witnesses they want and they don’t have access to the evidence. A genuine military tribunal, under the rules of courts martial, would be far preferable.

The problem is that nearly all of the actual evidence against many of the detainees was obtained under torture, abuse and coercion. No legitimate court would allow the introduction of such evidence. And if you think this is wrong, then by all means let’s put you under the same treatment and charge you with whatever you confess to under those conditions.

And this actually only applies to those they have deemed it necessary to detain indefinitely — and even if they win in the review board, it may still mean nothing:

The executive order affects only those detainees designated for indefinite detention. The board will also examine whether some cases that had been referred for prosecution are still viable. Currently, 47 of the 172 detainees at Guantanamo have been selected for indefinite detention. The list is secret — even the detainees do not know they are on it — and, privately, officials have said the list is likely to grow. About three dozen others could be prosecuted, but it is unclear where…

The order, which was completed last December, aimed to give those facing indefinite detention a possible way out of life in prison without charge or trial. But legislative provisions passed at the end of 2010 will effectively render the review process useless to many of the detainees. Because of the congressional restrictions now in place, a detainee who wins his freedom through the review board may in fact be ineligible for release. Similarly, a detainee who wins his military commission trial or even serves a short sentence could wind up being put on a “releasable” list, but not sent out of Guantanamo.

So even if they manage to make it through this patently unjust gauntlet of rigged results, they could still be locked up forever.

Oh, this is my favorite part:

When asked to explain how a decision to move ahead with new trials at Guantanamo was consistent with claims that the administration is closing the facility, the officials said the commissions were consistent with presidential pledges to bring terrorists to justice.

And ignore the concept of justice for those who are merely accused of terrorism, not actually guilty of it. There is nothing remotely just about any of this. Star chamber proceedings are the antithesis of justice.