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Obama Planning to Issue Executive Order on Guantanamo

President Obama is planning to issue an executive order on Guantanamo soon. The ACLU has posted a draft of the order here. Bobby Chesney comments:

I reprint and summarize the key passages below.  Note that the draft order holds the door open to prosecution options other than federal criminal prosecution, and in fact appears to leave the door open to non-criminal detention methods.

[From the “findings” section]

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 facility would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facility 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 Guantanamo should precede the closure of the detention facilities at Guantanamo. . . .

It is in the interests of the United States that the Administration 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.

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 one 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.

Sec. 4. Immediate Review of All Guantánamo Detentions.

[This section requires an individual status review to begin immediately, with “full cooperation and participation” from the AG, SecDef, SecState, SecHomeland, DNI, CJCS, and others to be designated by the AG.  The review process specifically will consider or do the following:

* Gathering data- the AG will assemble all relevant information the government has on each detainee

* Transfer/release – the reviewers will decide for each case whether a transfer/release to another country is feasible

* Prosecute in some cases – for those who do not get approved for transfer/release, the reviewers will determine whether the government should pursue a criminal prosecution (and if so, the reviewers are to take steps to make that happen).  The draft language refers to prosecution in an Article III court, but does so in a way that does not foreclose use of other for a:

“In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations.” (emphasis added)

* Other disposition (i.e., detention on other grounds) – here is the catch-all section, which leaves the door open for non-prosecutorial detention:

“(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under subsections (c)(2) or (c)(3) of this section, 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. The appropriate authorities shall promptly implement such dispositions.”

* Moving to the US – the reviewers also are to consider the many issues raised by the prospect of moving the GTMO detainees to facilities in the US, including the possible need for legislation.

Section 6. Humane Standards of Confinement.

[SecDef to conduct a review within 30 days to ensure full compliance with Common Article 3 at GTMO]

Sec. 7. Military Commissions.

[SecDef to ensure that no charges are sworn or referred to the Military Commission system during the pendency of the review, and that all pending proceedings are “halted.”]

Sec. 8. General Provisions.

[Nothing in this order impacts detention beyond GTMO]

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.