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Joanne Mariner

Obama's First Steps on Guantanamo


Wednesday, Jan. 28, 2009

Within hours of taking office last week, President Barack Obama ordered government prosecutors to seek a halt to the military commission proceedings at Guantanamo. Less than two days later, he signed four historic executive orders that mark a sharp break from the Bush administration's legacy of arbitrary detention, cruel treatment, and unfair trials.

Obama promised change, and he delivered it. The prison camp at Guantanamo will be shutting its doors within a year; CIA prisons are banned, and one of the root causes of the detention abuses of last seven years—a series of Justice Department memoranda setting out a faulty and bad-faith understanding of the legal framework governing detention and interrogation—have been stripped of their legal authority.

Dick Cheney, David Addington, and John Yoo have left the room.

But much remains unresolved. The executive orders that President Obama signed are bold yet still, in some crucial ways, cautious. They open the door to a wholly new direction in dealing with suspected terrorists, but they are carefully crafted, in certain areas, not to commit the new administration to undertaking immediate and concrete reforms.

Pending Questions

The judicious approach displayed in the new executive orders is evident in their emphasis on review and analysis. The first three orders establish a "Special Task Force on Detainee Disposition" to examine policy options available for handling prisoners captured in armed conflict or counterterrorism operations, a "Special Interagency Task Force on Interrogation and Transfer Policies" to review interrogation and transfer policies, and a review team made up of officials from several different departments and agencies charged with figuring out what to do with the 245 men currently in detention at Guantanamo.

The fourth order, similar to the one covering prisoners at Guantanamo, mandates a review of the detention and treatment of Ali Saleh Kahlah al-Marri. Al-Marri, a Qatari national who was arrested at his home in Peoria, Illinois, is the only person deemed an enemy combatant still held within the United States.

Neither the Guantanamo nor the al-Marri order specifically sets out what will happen with the prisoners that it covers. The Guantanamo order lays out several possibilities, but the range of options it lists is broad. Detainees may be released or transferred to other countries, put on trial, or placed in a "none of the above" category.

What will happen to those who end up in the latter group is still quite unclear. All the order says is that "the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals." No doubt, the uncertainty surrounding the fate of this group will encourage commentators who have urged the passage of preventive detention legislation that would allow detainees to be held without charge in the United States.

Another area in which uncertainty remains is that of prosecutions. The military commission proceedings at Guantanamo have been temporarily halted but not formally discontinued. Twenty-one defendants are still facing charges before these substandard tribunals, including six who are threatened with the death penalty.

The Guantanamo order does specifically say that the review team should examine "whether it is feasible to prosecute [detainees] before a court established pursuant to Article III of the United States Constitution." Since this is the only prosecutorial option that the order specifically references, it is probably safe to assume that it is the option that the new administration prefers. Other options, however, are not foreclosed. Some experts continue to advocate for military trials before courts-martial, or even a revamped version of the military commissions.

One more area of uncertainty is CIA activities. The third of the new orders is categorical in stating the CIA "shall not operate" any detention facilities. This represents a dramatic rejection of the Bush administration's use of CIA "black sites."

Yet here, too, a degree of ambiguity remains. In its definitions section, the order specifies that the term detention facilities does not include "facilities used only to hold people on a short-term, transitory basis." So how long is the CIA allowed to hold people? And where will these people be in transit to? Because another pending issue, not addressed in the order, is whether and in what circumstances the CIA practice of rendition will continue.

A False Choice

"We reject as false the choice between our safety and our ideals," Obama said in his inaugural address. The executive orders that followed showed that he meant what he said.

By rejecting the Bush administration's misguided choices on torture, Guantanamo, and CIA prisons, the new administration is off to a promising start. Let's hope it shows equal courage and integrity in grappling with the difficult decisions ahead.

Joanne Mariner is a human rights attorney based in New York.  Her previous columns on the detainee cases and the “war on terrorism” are available in FindLaw's archive.

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