As expected, Defense Secretary Robert Gates suspended the two-year ban on new action in military commissions for detainees at Guantanamo Bay today, resuming a practice Obama did away with as one of his first acts in office. For background on the tortured arc of Obama’s rightward move on this issue, see the piece I did with Weisskopf here. More recently, Pro-Publica’s Dafna Linzer looked at last year’s deliberations at the White House here. New charges under the commissions are expected in days or weeks, but are not expected to include big name 9/11 detainees like Khalid Sheikh Mohammed.
Obama also announced periodic reviews for detainees held indefinitely without trial. These include detainees held because the evidence of their alleged terrorist activities can’t be brought out in trial or is insufficient to get a conviction; and those who can’t be sent home, either because they’ll go straight back to al Qaeda (as in Yemen), or because they’ll be abused (as in Libya–see diplomatic cables via Wikileaks on that subject here). The reviews include the appointment of advocates for the detainees and other measures intended to put their detention on more solid legal footing.
All of this responds to Obama’s archives speech of May 2009, where he walked back his more progressive January 2009 position but tried to retain a bulwark of detention and prosecution principles for terrorism detainees. Since then, Congress has passed laws blocking the closure of Gitmo by preventing the transfer of detainees by the executive branch. House and Senate Republicans (McKeon and Graham) are expected to introduce bills further blocking detainee access to U.S. courts in the coming week.
On a conference call Monday, Obama senior advisors said the president remains committed to closing Gitmo by diminishing the number of detainees held there. But the moves announced today could have the opposite effect, admits a senior White House official. The Bush and Obama administrations have faced repeated habeas corpus challenges to their detention of alleged terrorists at Gitmo. Last I checked, detainees bringing habeas cases were winning by a 4-to-1 ratio. By increasing due process at Gitmo, the new measures make it more likely judges will defer to the executive branch and rule against detainees claiming they are being held unfairly at Gitmo. One administration official argued that judges would not be affected by the new procedures.
The habeas releases remain the only way that Gitmo’s numbers can decrease these days. The administration is still debating how to comply with the Congressional ban, but as long as it is in place even a detainee who uses his new due process rights to challenge his detention in military commissions and wins will stay in Gitmo forever… or until Congress changes its mind about closing it down.