Obama's orders only the start of a detainee policy overhaul

McClatchy NewspapersJanuary 22, 2009 

WASHINGTON — The three executive orders that President Barack Obama signed on Thursday to shut the Guantanamo Bay and CIA prisons begin to untangle some of the legal, diplomatic and practical knots created by the Bush administration's war on terror policies.

They marked a clear break with policies such as indefinite detention without charges or trial, which have been widely criticized as violations of U.S. and international legal principles and protections.

The executive orders also embodied what appeared to be Obama's repudiation of the Bush administration's view that the Constitution gives the president unlimited powers when it comes to the conduct of war.

Tougher decisions still await Obama, however. The first is what to do with detainees who are considered terrorist threats but can't be tried because of a lack of evidence against them or because evidence is tainted by interrogation methods that some U.S. officials consider torture or too highly classified to use in court.

Obama also will have to decide, based on high-level reviews authorized in his executive orders, which detainees can be freed and which can be prosecuted, what kind of court to try them in and where to hold them inside the U.S.

A senior administration official, who asked not to be named because of the sensitive nature of the matter, said the review would "happen on a rolling basis," with Obama authorizing transfers as they're recommended. Those reviews are to begin immediately.

The first of Obama's three orders directed the closure of the Guantanamo prison within a year and a freeze on military commissions, the panels of military officers created to try terror suspects. Unlike criminal proceedings in civilian courts, the commissions allow the government to introduce hearsay, evidence obtained by coercive means and secret materials that defendants and their lawyers are prohibited from seeing.

A second executive order created a special task force headed by the incoming attorney general and Defense Secretary Robert Gates that will recommend within 180 days new policies for detaining, trying, transferring or releasing suspected terrorists that adhere to U.S. and international laws.

The third order revokes the Bush administration legal re-interpretations of interrogation methods permitted under the 1949 Geneva Conventions. It requires all interrogators, including those working for the CIA, to adhere to a revised U.S. Army Field Manual. The manual and the U.S. criminal code bars techniques such as waterboarding, which simulates drowning, that's considered torture.

Some experts want Congress to authorize a special counterterrorism court, court martial-style tribunals or indefinite preventive detention. Others urge turning the detainees over to the criminal justice system and freeing them if there isn't enough evidence to indict them.

Obama also will have to decide, based on high-level reviews authorized in his executive orders, which detainees can be freed and which can be prosecuted, what kind of court to try them in and where to hold them inside the U.S.

"What started today was a process that the president committed to during the campaign," said White House spokesman Robert Gibbs. "That process started today with his signature. That process will go on until the issues that were outlined are appropriately determined."

"Determined" means closing the Guantanamo detention center, according to Obama's nominee for director of national intelligence.

"The U.S. government will have a clear and consistent standard for treatment of detainees," retired Adm. Dennis Blair told his Senate Intelligence Committee confirmation hearing. "The Guantanamo detention center will be closed. It's become a damaging symbol."

A McClatchy investigation last year found that numerous innocents and low-level fighters of little or no intelligence value were swept into Guantanamo since the detention center opened at the U.S. naval base on Cuba following the 2001 U.S. invasion of Afghanistan.

The policies also brought enormous strains with Congress and have been struck down repeatedly by the Supreme Court and other federal courts.

Obama's action "signals that he thinks his executive authority is less expansive in the area of overriding statutes, ignoring international law and creating full-blown adjudicatory systems," said Christopher Schroeder, a professor of constitutional law at Duke University Law School.

Outgoing CIA director Michael Hayden objected to restrictions on interrogation techniques, arguing that some of them have helped prevent new terrorist attacks.

Obama ordered the agency to close the network of secret prisons in which it held and questioned high-level al Qaida members and other suspects, including accused 9/11 mastermind Khalid Sheikh Mohammed and two others subjected to waterboarding.

Last week, Hayden said that the CIA had imprisoned fewer than 100 detainees and hadn't used waterboarding since 2004.

However, he cautioned Obama not to hold the agency to the Army Field Manual, saying that it was designed for battlefield interrogations, not for intelligence officers.

Deferring to that concern, Obama ordered a task force led by the incoming attorney general to review the Army manual "to determine whether different or additional guidance is necessary for the CIA."

A senior administration official, who asked not to be named because the policy hasn't been finalized, said that the CIA wouldn't be allowed to use interrogation techniques outside the 19 methods authorized by the manual.

There are different problems with different groups in Guantanamo.

Human rights and legal defense groups say there are roughly 50 inmates — including 17 Uighurs, Turkic-speaking Muslims from China — against whom there's no case, but who haven't been sent home out of fear that they'd be tortured.

The State Department has been working to convince European countries to accept these detainees, but only Albania agreed to take five Uighurs in 2006.

There are about 100 detainees, mostly Yemenis, whom the Bush administration considered potential threats but declined to prosecute. It wanted to repatriate them once their governments agreed to detain or subject them to strict supervision.

The thorniest problems involve about 100 detainees who are considered hard-core Islamic militants, including Mohammed and four others accused in the Sept. 11, 2001, attacks.

An unknown number of these detainees were subjected to aggressive interrogation techniques that raise questions about whether they can be prosecuted.

Under Obama's order, a second review would make that determination, as well as establishing the kind of proceeding in which detainees would be tried.

The administration's "preference" is for prosecutions in federal or military courts, the order said. In a nod to some conservatives, however, it said that revisions to the military commissions "would remain an option."

Obama has expressed a personal preference for prosecutions in civilian courts.

MORE FROM MCCLATCHY

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