Safe To Release?
A new Pentagon report may complicate Obama's plans for Gitmo.

Michael Isikoff
NEWSWEEK
From the magazine issue dated Jan 24, 2009
The Pentagon is preparing to declassify portions of a secret report on Guantanamo detainees that could further complicate President Obama's plans to shut down the detention facility.

The report, which could be released within the next few days, will provide fresh details about 62 detainees who have been released from Guantanamo and are believed by U.S. intelligence officials to have returned to terrorist activities, according to two Pentagon officials who asked not to be identified talking about a document that is not yet public. One such example, involving a Saudi detainee named Said Ali Al-Shihri, who was released in 2007, received widespread attention Friday when Pentagon officials publicly confirmed that he has recently reemerged as a deputy commander of Al Qaeda in Yemen. Al-Shihri, once known publicly only as Guantanamo detainee No. 372, is suspected of involvement in a thwarted attack on the U.S. embassy in Yemen last September.

The decision to release additional case studies from the report is in effect a warning shot to the new president from officials at the Pentagon and U.S. intelligence agencies who are skeptical about some of his plans. Some Pentagon officials, including ones sympathetic to Obama's goals, note the political outcry would be deafening should another example like Al-Shihri become public six months from now—and it turns out to be a Guantanamo detainee released under Obama's watch rather than by the Bush administration. "The last thing Obama wants is for one of these guys [at Guantanamo] to get released and return to killing Americans," said one senior Defense Department official who asked not to be identified because of the political sensitivities.

Some counter-terrorism experts have raised questions about the significance of the Pentagon's figures, noting that the number of so-called "recidivist" detainees represents only a small portion, about 12 percent, of the approximately 520 detainees who have been released from Guantanamo since the detention facility was opened in January 2002. This compares with recidivism rates of as high as 67 percent in state prisons in the United States, according to Justice Department figures. There have also been concerns that Bush administration holdovers were deliberately playing up the cases in recent weeks in an effort to undercut Obama. One former senior U.S. counter-terrorism official noted to NEWSWEEK that the Pentagon waited until the day after Obama signed his executive order mandating the closure of Guantanamo to confirm Al-Shihri's renewed Al Qaeda ties.

Still, a few top Obama administration officials have privately acknowledged that the problem of still dangerous detainees at Guantanamo is more worrisome than some of president's campaign statements might suggest. In May 2008, when the Defense Intelligence Agency (DIA) last prepared a report on released Gitmo detainees who had returned to terrorist activities, it counted the number of recidivists at 37. Among the examples: Mohammed Ismail, one of the "juveniles" at Guantanamo who, upon his release in 2004, had praised his treatment by Americans, saying at a press conference, "They gave me a good time at Cuba." He was recaptured four months later, participating in an attack on U.S. forces near Kandahar, Afghanistan.

As Pentagon press secretary Geoffrey Morrell disclosed two weeks ago, by mid-January of this year, 24 new detainees had been added to the DIA recidivist tally. The recent confirmation of Al Shihri bumped the overall number to 62, 18 of whom are alleged to have directly participated in terror attacks.

This does not necessarily mean that Guantanamo detainees released in the later part of 2008 were responsible for the increase. There is often a lengthy lag time between the time a detainee is freed and when U.S. intelligence officials learn of the individual's terrorist involvement. Still, the spike in the recidivist rate is not surprising, defense officials say. "The easy ones were released first," said a senior Pentagon official. "As time goes on, the releases become harder and harder. These are increasingly more difficult cases."

As of now, about 240 detainees remain at Guantanamo. Human rights groups and defense lawyers insist there is little or no evidence of terrorist involvement against scores of them. Some federal judges agree, having ordered the Pentagon in recent weeks to release some of them. The Obama administration, which has given itself a one-year deadline to shut down the facility, is hoping that European countries, like Portugal, Spain and Germany, will agree to take some of these detainees. The administration is also trying to get the government of Yemen to take about 100 of its nationals—the largest single group of prisoners at the facility. But even these assumptions are shaky. The Pentagon has been trying for months to hammer out an agreement with the Yemeni government to monitor released Guantanamo detainees with little success.

The hardest chunk involves a core number, estimated by some officials to be about 50 or 60, who are deemed to be highly dangerous but who, for a variety of reasons—including the fact that they may have been subjected to waterboarding or other "enhanced" interrogation techniques—may be impossible to try in any federal or military court. The Obama administration is likely to have no choice but to move them to another facility inside the United States, such as the U.S. naval brig in Charleston, S.C., or the military prison in Fort Leavenworth, Kan., and hold them indefinitely without trial, thereby risking worldwide criticism that it is simply creating a "Guantanamo, South Carolina" or a "Guantanamo, Kansas."

While the Obama administration may create some sort of system for periodic judicial review of these cases, the one thing it won't do is release these detainees, said one senior Obama adviser who asked not to be identified talking about the White House's internal thinking on the matter. Asked about the prospect that some of these detainees might be let go, the adviser brushed the thought aside. "That's not going to happen," he said.

URL: http://www.newsweek.com/id/181453

EXECUTIVE ORDER -- REVIEW AND DISPOSITION OF INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL BASE AND CLOSURE OF DETENTION FACILITIES

By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

Section 1. Definitions. As used in this order:

(a) "Common Article 3" means Article 3 of each of the Geneva Conventions.

( "Geneva Conventions" means:

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114);

(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516).

© "Individuals currently detained at Guantánamo" and "individuals covered by this order" mean individuals currently detained by the Department of Defense in facilities at the Guantánamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.

Sec. 2. Findings.

(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantánamo are eligible for such transfer or release.

( Some individuals currently detained at Guantánamo have been there for more than 6 years, and most have been detained for at least 4 years. 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 facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facilities 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 Guantánamo should precede the closure of the detention facilities at Guantánamo.

© The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.

(d) It is in the interests of the United States that the executive branch 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.

(e) New diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantánamo.

(f) Some individuals currently detained at Guantánamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.

(g) It is in the interests of the United States that the executive branch conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guantánamo who have been charged with offenses before military commissions pursuant to the Military Commissions Act of 2006, Public Law 109-366, as well as of the military commission process more generally.

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 1 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.

(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantánamo (Review) shall commence immediately.
( Review Participants. The Review shall be conducted with the full cooperation and participation of the following officials:

(1) the Attorney General, who shall coordinate the Review;

(2) the Secretary of Defense;

(3) the Secretary of State;

(4) the Secretary of Homeland Security;

(5) the Director of National Intelligence;

(6) the Chairman of the Joint Chiefs of Staff; and

(7) other officers or full-time or permanent part-time employees of the United States, including employees with intelligence, counterterrorism, military, and legal expertise, as determined by the Attorney General, with the concurrence of the head of the department or agency concerned.

© Operation of Review. The duties of the Review participants shall include the following:

(1) Consolidation of Detainee Information. The Attorney General shall, to the extent reasonably practicable, and in coordination with the other Review participants, assemble all information in the possession of the Federal Government that pertains to any individual currently detained at Guantánamo
and that is relevant to determining the proper disposition of any such individual. All executive branch departments and agencies shall promptly comply with any request of the Attorney General to provide information in their possession or control pertaining to any such individual. The Attorney General may seek further information relevant to the Review from any source.

(2) Determination of Transfer. The Review shall determine, on a rolling basis and as promptly as possible with respect to the individuals currently detained at Guantánamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible.

(3) Determination of Prosecution. 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.

(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under paragraphs (2) or (3) of this subsection, 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.

(5) Consideration of Issues Relating to Transfer to the United States. The Review shall identify and consider legal, logistical, and security issues relating to the potential transfer of individuals currently detained at Guantánamo to facilities within the United States, and the Review participants shall work with the Congress on any legislation that may be appropriate.

Sec. 5. Diplomatic Efforts. The Secretary of State shall expeditiously pursue and direct such negotiations and diplomatic efforts with foreign governments as are necessary and appropriate to implement this order.

Sec. 6. Humane Standards of Confinement. No individual currently detained at Guantánamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with this directive. Such review shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter.

Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

Sec. 8. General Provisions.

(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.

( This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

© This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.


BARACK OBAMA


THE WHITE HOUSE,
January 22, 2009.

http://www.whitehouse.gov/the_press_office...tionFacilities/

Editorial: Obama’s pledge to close Guantanamo
Friday, January 23, 2009


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A prison at Guantanamo Bay would have made sense if it had been run as a normal prisoner of war camp, subject to the Geneva Conventions and international inspection.

Instead, it doubled as an interrogation center subject to its own arbitrary rules. The intense secrecy only gave credence to tales of prisoner abuse, founded or unfounded, and this in turn was compounded by the Bush administration’s plans for one-sided trials.

Instead, in its more than seven years of operation, Guantanamo has become a caustic international stain on the United States’ reputation as a champion of humane values and the rule of law.

The Guantanamo Bay prison has become so horribly tainted that there really was no option other than to close it.

True to his campaign promise, one of Barack Obama’s first acts as president was to sign an executive order on Thursday directing that the prison be closed within a year.

He also signed two other orders that should go a long way toward reassuring our friends and allies that we have not totally strayed from our ideals.

He limited interrogation techniques for all government agencies, including the CIA, to those outlined in the Army Field Manual, and he prohibited the secret detention of captives in third countries.

Obama also delayed for 120 days all proceedings under Bush’s military tribunals while a task force tries to come up with a better way of judging the prisoners’ status.

The tribunals, too, have been largely discredited and the alternatives would seem to be to come up with a new system, perhaps a special court; try the detainees in U.S. criminal courts; or bring them before a military court martial.

It is a testament to the U.S. legal system that military and civilian defense lawyers won court victory after court victory re-establishing such basic rights as habeas corpus.

The civilian courts have proved that they can try terrorism cases, assuming that the evidence hasn’t been gathered in a way that would force a judge to throw it out.

Critics of Obama’s policy might understand that President Bush also said he wanted to close Guantanamo, but the problem of how to do that was slow-walked into the new administration.

Obama was right to give himself a year to close Guantanamo Bay. Some of the prisoners could be released now if we could find anybody to take them.

Others, the truly hardened terrorists, probably won’t be released under any circumstances.

There is considerable opposition to bringing the prisoners to the U.S. mainland, but we are inescapably responsible for them.

Military prisons in Kansas, South Carolina and California have been proposed, but local lawmakers have objected.

And it’s not like they’re coming here to a life of ease. After a U.S. “super max” prison, the detainees may look back on Guantanamo Bay as the good old days.

Meanwhile, the United States moves deliberately to get an albatross from around its neck.

http://www.knoxnews.com/news/2009/Jan/23/e...ose-guantanamo/

Editorial: Obama's pledge to close Guantanamo
Submitted by SHNS on Tue, 01/13/2009 - 15:44. An editorial / By Dale McFeatters, Scripps Howard News Service editorials and opinion
In theory, a special prison at Guantanamo Bay for captives in the war on terror made sense. It would be totally under U.S. control and unlike prisons in Afghanistan and Pakistan there was no chance the inmates could break out or bribe their way out.

It would give U.S. intelligence officials the leisure to question the prisoners, using approved techniques in effect since World War II, and decide whom to release, whom to try for war crimes and whom to hold until the cessation of hostilities.

In theory, at least. In practice, the Bush administration made Guantanamo Bay a worldwide symbol of U.S. arrogance, recklessness and disregard for both our own and international law. And the administration's obsessive secrecy only compounded the problem. Perhaps the tales of abuse and humiliation of prisoners were exaggerated but absent independent observers, who would believe us? After the existence of the torture memos became known, no one.

The prisoners were originally to be tried by the administration's military tribunals, kangaroo courts that were embarrassingly one-sided, basically leaving the verdict and the sentence up to the president and the secretary of Defense. It is a testament to the U.S. legal system that military and civilian defense lawyers won court victory after court victory reestablishing such basic rights as habeas corpus. But by the time the process got to that point, the brand, so to speak, of Guantanamo Bay was hopelessly tainted.

President Bush said he wanted to close the prison but the problem of how to do so was slow-walked into the Obama administration. Barack Obama's advisers say that he is preparing an executive order closing the prison to be issued immediately after taking office.

Obama admits that closing the facility will be a "challenge" and that doing so may take as long as a year. An immediate problem is what to do with the prisoners cleared for release. Often their own countries don't want them and other countries, among them the severest critics of Guantanamo Bay, don't want them either.

Another problem is where to house the prisoners we plan to keep. Military prisons in Kansas, South Carolina and California have been proposed but local lawmakers have objected. Sen. Sam Brownback, R-Kansas, suggest a new prison be built -- but probably not in Kansas -- to hold the terrorism detainees.

And then there is the problem of trying the prisoners. Obama's aides say he is likely do away with the military commissions. That means the civilian courts, military courts martial or proposing legislation establishing a new system.

In theory, Guantanamo Bay was a good idea at the time, but seven years after it was opened the prison is an albatross around the nation's neck.

(Distributed by Scripps Howard News Service, http://www.scrippsnews.com)

http://www.scrippsnews.com/node/39936

January 22, 2009
Editorial
First Steps at Guantánamo
NEW YORK TIMES

Long before President Obama took office, pretty much everyone, even President George Bush, said the prison at Guantánamo Bay needed to be closed. In June 2007, the White House claimed it was working on a “number of steps” that had to happen first — but getting started was really hard.

Well, maybe not so hard. It took President Obama less than 12 hours. Before midnight of his first day in office, he took the obvious and vital step of halting the military tribunals at the prison camp. And he reportedly is considering a draft executive order that would direct that the prison be closed entirely within a year.

All reasonable people, including many of the defense lawyers and some of the judges and prosecutors assigned to them, recognize these tribunals for what they are: a mockery of American standards of justice and due process.

The retired judge who runs them told Bob Woodward of The Washington Post recently that she had to reject prosecution of a Saudi man accused of planning to take part in the 9/11 attacks because the case had been tainted by torture. At least one prosecutor has resigned because he considered the cases rigged.

Mr. Obama rightly denounced the tribunals during the campaign. And we were delighted to see him shut them down so swiftly now that he is in the White House.

Mr. Obama’s decision came in a legal filing by military prosecutors, which described the halt as temporary, to give the administration time “to review the military commission process, generally, and the cases currently pending before the military commissions, specifically.”

We presume that is a legal nicety. There is no good reason to restart these trials and doing so would send precisely the wrong signal to the world. We’re now eagerly awaiting Mr. Obama’s announcement of the process by which he will shut Guantánamo and what he will do with its estimated 245 prisoners.

We know that many pose no threat to the United States, if they are guilty of anything at all. We also know that a few are very dangerous and that the illegal and abusive policies of the Bush administration will make it very hard to bring them to full justice. Fixing that part of Mr. Bush’s grotesque legacy will be a lot harder than closing the prison.

http://www.nytimes.com/2009/01/22/opinion/...agewanted=print