[Ppnews] Indefinite detention possible for suspects at Guantanamo Bay

[Political Prisoner News]

Indefinite detention possible for suspects at Guantanamo Bay

http://www.washingtonpost.com/wp-dyn/content/article/2010/12/21/AR2010122105523.html
By Peter Finn and Anne E. Kornblut
Washington Post Staff Writers
Wednesday, December 22, 2010; A03

The Obama administration is preparing an executive order that would 
formalize indefinite detention without trial for some detainees at 
the U.S. military prison at Guantanamo Bay, Cuba, but allow those 
detainees and their lawyers to challenge the basis for continued 
incarceration, U.S. officials said.

The administration has long signaled that the use of what the 
administration calls 
<http://www.washingtonpost.com/wp-dyn/content/article/2009/05/21/AR2009052104045.html>prolonged 
detention, preferably at a facility in the United States, was one 
element of its 
<http://www.washingtonpost.com/wp-dyn/content/article/2010/01/28/AR2010012803905.html>plan 
to close Guantanamo. An interagency task force found that 48 of the 
174 detainees remaining at the facility would have to be held in such 
conditions.

"We have a plan to close Guantanamo, and this detainee review process 
is one element," said an administration official who discussed the 
order on the condition of anonymity because it has yet to reach the president.

However, almost every part of the administration's plan to close 
Guantanamo is on hold, and it could be crippled this week if Congress 
bans the transfer of detainees to the United States for trial and 
sets up steep hurdles to the repatriation or resettlement in third 
countries of others.

Officials worked intensively on the executive order over the past 
several weeks, but a senior White House official said that it had 
been in the works for more than a year. If Congress blocks the 
administration's ability to put detainees on trial or transfer them 
out of Guantanamo, the official said, the executive order could still 
be implemented.

"I would argue that you still have to go ahead because you can't 
simply have people confined to a life sentence without any review and 
then fight another day with Congress," the administration official 
said. "One of the things we're mindful of is [that] you can't have a 
review conducted by the same people, in the same process, who made 
the original decision to detain. You have to have something that is 
different and is more adversarial, which the Bush administration never had."

Under the system established by the previous administration, 
Guantanamo detainees could go before military review panels with 
"personal representatives," also military officers, who explained the 
process but could not act as lawyers. The system envisioned under the 
executive order would be more adversarial and would allow detainees 
to challenge their incarceration periodically, possibly every year.

"There isn't a single serious commentator on the subject who hasn't 
thought something like this wasn't necessary as part of a rule-of-law 
approach," said the senior White House official, who also spoke on 
the condition of anonymity.

Provisions in the defense authorization bill, which has passed the 
House and is before the Senate, would effectively ban the transfer of 
any detainee to the United States for any purpose. That rules out 
civilian trials for all Guantanamo detainees, including Khalid Sheik 
Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, 
attacks. His potential prosecution had remained possible even though 
the administration had balked in the face of 
<http://www.washingtonpost.com/wp-dyn/content/article/2010/11/12/AR2010111207508.html>political 
opposition to a trial in New York.

The defense bill would effectively force the administration to 
conduct only military commissions, and, they would be at Guantanamo 
Bay, which would also have to remain open to house those held 
indefinitely. The bill would also create new requirements before the 
administration could repatriate or resettle detainees cleared for 
release by the interagency task force.

"If it passes, it is the final, decisive blow to the president's 
plan," said Tom Malinowski, head of the Washington office of Human 
Rights Watch.

In a speech at the National Archives in May 2009, President Obama 
said his administration would use criminal trials, reformed military 
commissions, transfers to other countries, releases and continued 
detention in pursuit of its commitment to close Guantanamo.

An administration task force ultimately determined that at least 48 
detainees were too dangerous to release but could not be put on 
trial. Officials have said the evidence against these detainees has 
been tainted by torture or cannot be used in court because it is 
classified or would not meet legal standards.

"When the review panel puts someone in the category of long-term 
detention, the 48 people, what happens then?" the administration 
official said. "Are they there for the rest of their lives? What's 
the review mechanism? How impartial is it? Do they have a chance to 
contest it? All of that stuff has to be answered. And we have been 
working on an executive order laying out these elements."

Those designated for prosecution but who are not charged could also 
have their cases reviewed under the proposed system in the executive 
order, the White House official said.

Detainees at Guantanamo would continue to have access to the federal 
courts to challenge their incarceration under the legal doctrine of 
habeas corpus. Officials said the plan would give detainees who have 
lost their habeas petition the prospect of one day ending their time 
in U.S. custody. And officials said the International Committee of 
the Red Cross has been urging the administration to create a review process.

Some civil liberties groups oppose any form of indefinite detention, 
even with a built-in mechanism to challenge incarceration.

"Indefinite detention without charge or trial is wrong, whether it 
comes from Congress or the president's pen," said Laura W. Murphy, 
director of the American Civil Liberties Union's Washington 
legislative office. "Our Constitution requires that we charge and 
prosecute people who are accused of crimes. You cannot sell an 
indefinite detention scheme by attaching a few due-process baubles 
and expect that to restore the rule of law." That is bad for America 
and is not the form of justice we want other nations to emulate."

The executive order, however, could be an effort to preempt 
legislation supported by some Republicans, which would create a 
system of indefinite detention not only for some Guantanamo detainees 
but also for future terrorism suspects seized overseas.

Malinowski said there is a "big difference" between using an 
executive order, which can be rescinded, to handle a select group of 
detainees that Obama inherited, and legislating a general indefinite 
detention scheme.

finnp at washpost.com kornbluta at washpost.com

Staff researcher Julie Tate contributed to this report.






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