With a stroke of his pen, President Obama today extinguished any last lingering hopes that his administration would eventually do the right thing on Guantanamo and restore due process rights to all the detainees held there.
In an Executive Order and accompanying fact sheet and press release, the White House formally announced the resumption of Military Commission hearings – memorably denounced as “an enormous failure” by candidate Obama – and outlined the new review process that will accompany the indefinite detention of individuals deemed to dangerous to release and to hard to prosecute.
The decision to resume Military Commissions has been a long time coming. Despite the fact that the most recent Commission cases all ended in a series of shady backroom plea deals which have done nothing to improve their reputation, the administration has now all but abandoned its halfhearted attempts to bring Guantanamo cases to federal court despite the inclusion of some lofty (and entirely unpersuasive) rhetoric to the contrary in today’s announcement.
For detainees slated for indefinite detention the administration has to all intents and purposes resurrected the widely discredited Combatant Status Review Tribunals (CSRTs) used at Guantanamo by the Bush administration.
For a small and unedifying taste of how poorly the CSRTs operated, track down a copy of the prizewinning short film The Response, the script of which largely consists of declassified transcripts of actual hearings.
The new body has been rebranded as the Periodic Review Board (PRB), presumably for cosmetic purposes, and is patterned after the review mechanism currently operating in the main US detention facility in Kabul, Afghanistan.
The PRBs will formally hear the cases against all those earmarked for indefinite detention within the next twelve months. Thereafter each case will be subject to a paper review every six months and a full review hearing every three years.
I have lost count of the number of times the same files have been reviewed by a rotating cast of national security officials. After almost decade in detention in most instances, it is hard to imagine that much new information can have been added to these files over the years but apparently it is a process that bears endless repetition.
The detainees facing indefinite detention will not be entitled to legal representation unless they can afford it. There will be no public defender available to represent the accused. Instead, the detainee will be assigned a personal representative in receipt of a government security clearance – most likely a junior military officer.
A similar system operates in Afghanistan where we have seen that there is a world of difference between even a well-meaning military appointee and a legal professional committed to playing his or her part in an adversarial contest over the facts of a case.
Furthermore, the detainee’s representative, security clearance and all, is not guaranteed access to the alleged evidence if it is deemed by the government to be too sensitive to share. The representative may receive a summary of sorts but this hardly allows for a rigorous examination of the government’s case.
Finally, even if by some miracle a detainee is able to successfully challenge the government’s case against him, the PRB does not have the power to order his release – it is only empowered only make recommendations. If the detainee has the misfortune to be Yemeni, about the best he can hope for is to be transferred to slightly more benign conditions of confinement.
In short, the situation for detainees in Guantanamo has not improved and nor has the reputation of American justice. Faced with an opportunity to demonstrate leadership and character, the administration has chosen instead to subordinate principle for political expediency, and follow timidly in the footsteps of its predecessor. Excelsior!