Obama's Executive Order to close Guantanamo expired yesterday

“One of US President Barack Obama’s most publicized and internationally applauded first acts upon coming into office was his executive order to shut down the detention center at Guantanamo Bay within a year”, as Sara Kuepfer Thakkar wrote in an analysis for the Zurich-based ISN Security Watch, but “The deadline for closing Guantanamo, which expires today [this was published yesterday, Friday 22 January 2010], has not been met”.

The Guantanamo Naval Base Detention Facility was opened on 11 January 2002, to imprison suspects in George W. Bush’s War on Terror.

At the time that this War on Terror was declared, experts warned that it could be a long time before it could be declared over — a fact which could create multiple problems, including what to do with the detainees being held in various covert facilities around the world.

President Obama has ordered an end to the terminology (“War on Terror”), but it seems that the policies and practices die harder.

Sara Kuepfer Thakkar wrote in her ISN analysis that “The prison at Guantanamo Bay had become a symbol of American abuse of Muslims, a convenient recruiting tool for al-Qaida, and thus a real liability for a war that ultimately can only be won by securing the support of Muslims around the world …

The ISN analysis continued: “But the majority of detainees will likely remain in a legal limbo state indefinitely. The evidence for convicting them is too feeble; yet, they are deemed too dangerous to be released. The case of Guantanamo Bay is becoming another indication of how little has changed during the first year of the Obama administration. It gives weight to the argument that Obama has essentially adopted many of Bush’s counterterrorism policies, considering that Bush had already been taking steps to close Guantanamo and modified the system of military commissions during his second term. Meanwhile, new torture allegations at Guantanamo are surfacing. In a disturbing article published by Harper’s magazine on Monday, Scott Horton investigates three mysterious ‘suicides’ allegedly committed by Guantanamo inmates in June 2006. As Horton explains, the military’s narrative of the reported suicides is implausible and does not jibe with other evidence. Drawing on testimonies of officers who were on duty during the night of the three deaths, Horton concludes that the prisoners most likely suffocated during aggressive interrogation at a secret facility that involved stuffing rags in their throats. Not the deaths themselves, but their continued cover-up by the military and various US government agencies, implicate the Obama administration, which has refused to thoroughly investigate the 2006 alleged suicides and other alleged crimes committed inside US detention facilities. The system is broken. No talk of ‘change’ will ever rectify that. True change can only come about by first finding out what kind of abuses have happened inside terrorist detention facilities, and how they have been allowed to happen. The Obama administration needs to eliminate every loophole and secret directive that could be understood as a green light to engage in immoral and illegal practices. Anything less would not be true ‘change’, but simple tinkering with policies that have been wrong-headed from the beginning. Obama has not abolished the Bush-era system of military commissions, nor has he found a new answer to the problem of preventive detention. Meanwhile, the US continues to maintain unsupervised military detention facilities in Afghanistan (such as at Bagram Air Base) and elsewhere, where suspected terrorists are held beyond the reach of the US justice system. Considering their continued existence, new cases of prisoner abuse are just waiting to happen”… This analysis can be read in full here.

From a link in this analysis, it is possible to find the Obama executive order, entitled REVIEW AND DISPOSITION OF INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL BASE AND CLOSURE OF DETENTION FACILITIES, which was signed on 22 January 2009 and published here.

The Obama Executive Order to close Guantanamo Bay Naval Base detention facilities says: “By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

Sec. 2. Findings.
(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantánamo are eligible for such transfer or release.

(b) Some individuals currently detained at Guantánamo have been there for more than 6 years, and most have been detained for at least 4 years. In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantánamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facilities without promptly determining the appropriate disposition of the individuals detained would not adequately serve those interests. To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantánamo should precede the closure of the detention facilities at Guantánamo.

(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.

(d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantánamo require a comprehensive interagency review.

(f) Some individuals currently detained at Guantánamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.

(g) It is in the interests of the United States that the executive branch conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guantánamo who have been charged with offenses before military commissions pursuant to the Military Commissions Act of 2006, Public Law 109-366, as well as of the military commission process more generally.

Sec. 3. Closure of Detention Facilities at Guantánamo.
The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.

A review of the status of each individual currently detained at Guantánamo (Review) shall commence immediately”…
Again, this Executive Order signed by U.S. President Barack Obama a year ago is posted here.

The Washington Post published, yesterday, an article written by Peter Finn on this matter.

[Before getting into the substance, a point of contention: the use of the word “bemoaned” by the reporter, and by the Washington Post, in this paragraph: “Human rights advocates have bemoaned the administration’s failure to fulfill President Obama’s promise last January to close the Guantanamo Bay facility within a year as well as its reliance on indefinite detention, a mechanism devised during George W. Bush’s administration that they deem unconstitutional”. At the very least, characterizing the attention paid to this matter by human rights advocates as “bemoaning” the failures, is a value-laden editorial judgment which dismisses the rigor and importance of the monitoring efforts. This word should be changed to a more neutral and objective term.]

Now, this WPost article reports that “A Justice Department-led task force has concluded that nearly 50 of the 196 detainees at the U.S. military prison at Guantanamo Bay, Cuba, should be held indefinitely without trial under the laws of war, according to Obama administration officials … Human rights advocates have bemoaned the administration’s failure to fulfill President Obama’s promise last January to close the Guantanamo Bay facility within a year as well as its reliance on indefinite detention, a mechanism devised during George W. Bush’s administration that they deem unconstitutional. ‘There is no statutory regime in America that allows us to hold people without charge or trial indefinitely’, said Anthony D. Romero, executive director of the American Civil Liberties Union … The task force has recommended that Guantanamo Bay detainees be divided into three main groups: about 35 who should be prosecuted in federal or military courts; at least 110 who can be released, either immediately or eventually; and the nearly 50 who must be detained without trial … In a May speech, Obama said detention policies ‘cannot be unbounded’ and promised to reshape standards. ‘We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified’, he said … Administration officials argue that detaining terrorism suspects under Congress’s authorization of the use of force against al-Qaeda and the Taliban is legal and that each detainee has the right to challenge his incarceration in habeas corpus proceedings in federal court … The group of at least 110 detainees cleared for release includes two categories. The task force deemed approximately 80 detainees, including about 30 Yemenis, eligible for immediate repatriation or resettlement in a third country. About 30 other Yemenis were placed in a category of their own, with their release contingent upon dramatically stabilized conditions in their home country, where the government has been battling a branch of al-Qaeda and fighting a civil war. Obama suspended the transfer of any Guantanamo Bay detainees to Yemen in the wake of an attempted Christmas Day airliner attack, a plot that officials said originated in Yemen. Effectively, all Yemenis now held at Guantanamo have little prospect of being released anytime soon.
‘The task force recommendations are based on all of the known information about each detainee, but there are variables that could change a detainee’s status, such as being ordered released by the courts or a changed security situation in a proposed transfer state’, an administration official said. Moving a significant number of detainees to the United States remains key to the administration’s now-delayed plan to empty the military facility. The federal government plans to acquire a state prison in Thomson, Ill., to house Guantanamo Bay detainees, but the plan faces major hurdles. Congress has barred the transfer of the detainees to the United States except for prosecution. And a coalition of Republicans opposed to any transfers and some Democrats critical of detention without trial could derail the possibility of using the Thomson facility for anything other than military commissions, according to congressional staffers … Some European officials, who would like to see Guantanamo Bay closed without instituting indefinite detention, are advocating the creation of an internationally funded rehabilitation center for terrorism suspects in Yemen and possibly Afghanistan. They say such a facility would gradually allow the transfer of all detainees from those countries back to their homelands, according to two sources familiar with the plan. A majority of the detainees slated for prolonged detention are either Yemeni or Afghan, and European officials think the others could eventually be resettled under close supervision. European officials hope to raise the issue at an international conference in London next week that will address the situations in Yemen and Afghanistan … Since Obama took office, 44 Guatanamo Bay detainees have been repatriated or resettled in third countries, including 11 in Europe. The administration anticipates that about 20 detainees can be repatriated by this summer, and it has received firm commitments from countries willing to settle an additional 25 detainees who have been cleared for release, officials said” … This article is published by the WPost here.

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