Among the many aspects of President Obama's latest Executive Order on Guantanamo Bay is a requirement that detainees be assigned a "personal representative" to make their case to a newly-constituted review board. While that may sound like a nice idea, having recently seen what "personal representatives" do for U.S. prisoners in Afghanistan, I'm skeptical.
Yesterday's order was billed by the Obama Administration as a generous addition to what the law requires, a "discretionary" additional annual review that the government will provide to prisoners it has deemed too dangerous to release and therefore detainable until (and if ever) this far-reaching war "against al Qaeda, the Taliban and associated forces" is over.
Given that this is an additional process of review - additional to the right of habeas corpus, or review by a federal court, that the Supreme Court has said the law already requires - it's arguably a step forward. Although it represents an unfortunate acceptance by the Obama administration of the entire concept of long-term administrative detention based on some ill-defined concept of dangerousness, at least it gives prisoners another opportunity to defend themselves.
But is this a real step forward, or merely a dance around the requirements of due process?
The Administration's decision to assign prisoners "personal representatives" rather than lawyers, and to allow continued indefinite detention based on classified evidence, reflects a serious limitation in the new order that parallels the problems I've previously pointed out about the review system in Afghanistan.
During a recent trip to Afghanistan, my colleague Gabor Rona and I observed a set of detainee review board hearings, or DRBs. Despite the slightly different name, the new Periodic Review Boards, or PRBs, at Guantanamo sound strikingly similar. Like the PRBs, DRBs in Afghanistan allow prisoners there to appear before the board to claim that they're not "unlawful enemy belligerents," pose no national security threat, and should be set free. And like the PRBs, the prisoners in Afghanistan are assigned a "personal representative" to help them make their case.
Unfortunately, the "personal representatives" we saw at work in Afghanistan didn't seem to be representing much of anything. The hearings lasted about a half-hour and consisted of a military officer reading the charges against the detainee and vaguely summarizing the evidence against him. The government presented no witnesses to the events in question or to the detainee's dangerousness. In fact, the government presented no witnesses at all.
Although the personal representative was permitted to question the charges, challenge the evidence, and present witnesses in the prisoner's favor, he did nothing of the sort in the hearings we witnessed. A set of previous hearings observed by a consultant to Human Rights First in September were similar: neither the government nor the personal representative presented any witnesses, and, needless to say, there was no cross-examination. The personal representative barely questioned the government's case at all. Instead, he mostly asked the detainee whether he supported the Taliban, whether he would join Taliban forces upon his release, and what he would tell people in his village back home about how he'd been treated by U.S. forces. The hearings were hardly a robust examination of the evidence or even a minimally coherent risk assessment.
The new periodic review process the Administration has now established at Guantanamo is very similar, with a few key differences. For one thing, Gitmo prisoners are only allowed to appear before the board to make their case once every three years, as opposed to every six months in Afghanistan. (A paper review outside the detainee's presence is supposed to take place annually.) But at Gitmo, detainees will be allowed to have lawyers - if they can secure one at their own expense. That represents the Administration's acknowledgment of the fact that many of the detainees already have lawyers, since the US Supreme Court in Boumediene v. Bush ruled that detainees have a right to challenge their detention in federal court, and many defense lawyers volunteered to take on the Gitmo cases.
But it's significant that, unlike in the military commission trials, the US did not say that detainees are entitled to legal representation. Detainees are also not entitled to see all of the evidence against them. Even their representatives may in some cases only be entitled to a summary of the classified evidence, rather than the evidence itself. This makes the expertise of a lawyer, who knows how to work around those limitations in defense of a client, even more important.
As a practical matter, it would not have been very difficult for the U.S. to offer a handful of military lawyers to represent the approximately 86 or so Guantanamo prisoners that the new Executive Order applies to. But the administration appears to have made a calculated decision not to do that. Why? It can only be that it doesn't want to create the expectation that prisoners indefinitely detained by the United States under a law of war theory are entitled to legal representation.
Unfortunately, based on the performance of the non-lawyers I observed representing prisoners at the U.S.-run Bagram Air Base in Afghanistan, that amounts to a denial of due process for prisoners in indefinite U.S. detention.
In its Fact Sheet accompanying yesterday's executive order, the Administration announced its support for Additional Protocol II to the 1949 Geneva Conventions, which "sets out humane treatment standards and fair trial guarantees."
A basic element of a fair trial is the right to be represented by competent defense counsel and to confront the evidence being used against you. Unfortunately, the United States' current indefinite detention policy does not meet that minimum standard.
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A couple days after his election, he recieved his first classified intelligence briefing. I think it was at this point his idealistic dreams ending the war and closing GITMO melted away and reality set in. The harsh realities of the world are lost completely on the vast cross section of society. Especially the progressive idealists so fervently protesting this war. Americans by in large are sheltered from the horrors and external threats facing our society.
It seems as though these detainees would be better attended by Barack, if he gave them access to a representative from EXIT (the voluntary euthanasia and assisted suicide society). Since being held in a world ruled by individuals of such meager intellect and abysmally low aspiration, in regard to self improvement, makes the prospect of being able to check out appear not unattractive. If civilization has degenerated to the point where habeas corpus is no longer necessary. Then the accused might as well provide the court with the corpus delicti.
We have given back the Magna Carta.
Hmmm, maybe they'll consider humane treatment standards for Bradley Manning at some point, but it doesn't look promising... http://i56.tinypic.com/21oy7o3.jpg
1. Obama was always lying to us about his stands on Rendition, Gitmo, Civilian trials for detainees, Predator/Hellfire assassinations of US and foreign citizens, and US involvement in foreign wars.
2. He was telling the truth but once he got in the job he saw the reality of the situation and changed his mind.
3. He was always just another politician - willing to say or do anything to get elected without worrying overmuch what it was he said or did.
Anyone see any other options?
Idealists are always optimistic until the horrors of reality set in. The president thought that if he extended the olive branch to the muslim world he would suddenly change their perceptions of America. The reality is quite opposite. They percieved us as weak and the attempted bombings and attacks on us soil went up. Thank god none were successful.
I think after his first highly classified intelligence briefing his dreams of ending the war swiftly melted away. The reality of the situation, with its tough and often unpopular choices, were all that were left to greet him.
There is only providing due process, or denying due process.
To make up alternative 'process-like' alternatives to present "color of due process" is to attempt to substitute pseudo-process.
It is pretense. Smoke and mirrors. Sleight-of-hand chicanery trickery.
One wonders what the administration's point might be, to whom, or to what audience, the sham is directed.
In truth, the most dangerous and harmful component of indefinite detention is the indefinite detention.
Next after comes any unjust detention. Any detention for any length longer than it takes to determine the real question in any adversary detention situation, which is, if one has a case, or can make a case, in the specific situation.
Any detention that's not recognizably progressing toward a resolution is a coup for the side that can benefit from the victim's suffering.
The detainee does not have to be of the side, or sympathetic to it. Once he or she is held unjustly, or it, since even animals can be used to whip up anger against injustice, the detainee is a tool that can be used against the detaining.
Thus, both the least and the most potentially dangerous indefinitely detained Gitmo detainees pose more danger to America and Americans for being detained than the worst could do in the worst case if released.
They are more dangerous for the 'cause celebré' status that recruiters can assign them for their detentions being injustice.
Indefinite detentions and unfair trials in kangaroo courts are un-American and only further degrades our standing in the world.
Bush backed redition that started under Clinton, continued by Obama!
Bush support the Patriot Act, Obama and the Democrats continue it!
Bush supported Gitmo and Military terror trials at Gitmo, Obama supports them now!
So? 1: Is Obama confessing Bush was right? 2: Should Obama give back his "Peace Prize"?
3: Since you liberals wanted Bush tried for 'war crimes" do you now support going after Obama
for "war crimes"?
You will never get a counter response especially this one