The Obama administration is considering the creation of a review process for Guantanamo Bay detainees who are deemed too dangerous to be released but who cannot be tried in either civilian or military courts.
An administration official confirmed that an executive order had been drafted that would establish “periodic reviews” for prolonged detentions. But the official said the order had not yet gone to President Barack Obama.
The order may be greeted warily by human rights groups. While the administration sees the process as a way to provide clear standards for cases of indefinite detentions, many rights groups oppose any formalisation of such detentions.
The Washington Post, which first reported that the draft order was under consideration, said it would create a system that would allow detainees and their lawyers to challenge incarcerations, possibly every year.
It would also establish a more “adversarial” process for reviews than the system put in place by the administration of former President George W. Bush, the newspaper said.
There are still 174 detainees at the Guantanamo prison and about three dozen were set for prosecution in either US criminal courts or military commissions. Republicans have demanded that the trials be held at Guantanamo.
In a May 2009 speech in which he underscored his pledge to close the Guantanamo Bay military prison, Obama said there was a need for “prolonged detention” for some terrorism suspects who could not be tried but posed a threat to security.
US officials say trials are not possible in some cases because evidence was obtained through torture or is classified.
“We must have clear, defensible and lawful standards for those who fall in this category,” Obama said in the speech. “We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”
Obama has vowed to close the US military prison at Guantanamo Bay amid international condemnation of the treatment of detainees, but he has run into political resistance at home.
The formalisation of the policy on prolonged detentions comes as the Obama administration struggles with how to prosecute other terrorism suspects held at Guantanamo, including Khalid Sheikh Mohammed, the self-professed mastermind of the September 11, 2001, attacks.
The administration has had to scramble to lobby against legislation pending in Congress — surprisingly put forward by some of Obama’s fellow Democrats — that would ban bringing suspects to US soil for prosecution in criminal courts.
Attorney General Eric Holder has pushed for criminal trials for many terrorism suspects and has urged lawmakers to not interfere with the administration’s powers to decide how to prosecute them.
Elisa Massimino, head of Human Rights First, said an executive order “limited to certain Guantanamo cases” was preferable to broader legislation on prevention detentions.
But she added that preventive detention policies, whether by the administration or Congress, “pose a serious threat to fundamental rights and are no substitute for criminal justice”.
“Reliance on indefinite detention as a path of least resistance is part of how we ended up in the Guantanamo mess in the first place,” Massimino added.
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