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<font size=4><b>Indefinite detention possible for suspects at Guantanamo
Bay<br><br>
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<a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/12/21/AR2010122105523.html" eudora="autourl">
http://www.washingtonpost.com/wp-dyn/content/article/2010/12/21/AR2010122105523.html<br>
</a>By Peter Finn and Anne E. Kornblut<br>
Washington Post Staff Writers<br>
Wednesday, December 22, 2010; A03 <br><br>
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. <br><br>
The administration has long signaled that the use of what the
administration calls
<a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/05/21/AR2009052104045.html">
prolonged detention</a>, preferably at a facility in the United States,
was one element of its
<a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/01/28/AR2010012803905.html">
plan to close Guantanamo</a>. An interagency task force found that 48 of
the 174 detainees remaining at the facility would have to be held in such
conditions. <br><br>
"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. <br><br>
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. <br><br>
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. <br><br>
"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."
<br><br>
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. <br><br>
"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. <br><br>
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
<a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/11/12/AR2010111207508.html">
political opposition to a trial in New York</a>. <br><br>
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. <br><br>
"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. <br><br>
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. <br><br>
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. <br><br>
"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." <br><br>
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. <br><br>
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. <br><br>
Some civil liberties groups oppose any form of indefinite detention, even
with a built-in mechanism to challenge incarceration. <br><br>
"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." <br><br>
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. <br><br>
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. <br><br>
<b>finnp@washpost.com kornbluta@washpost.com</b> <br><br>
<i>Staff researcher Julie Tate contributed to this report.</i> <br><br>
<br><br>
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