The Obama administration formally cleared the way for new military trials at Guantanamo Bay Naval Base, lifting a ban the White House put in place two years ago as the initial step in a planned—but unsuccessful—effort to close down the controversial detention facility.
The moves by the White House and Pentagon on Monday mean that the administration has abandoned any real hope of shuttering the sprawling military prison, though the White House remains nominally committed to that policy in public. A senior administration official told reporters that new trials for suspected terrorists were likely to begin at Guantanamo Bay’s heavily fortified, one-story courtroom “within days or weeks.”
In a statement announcing that he was maintaining a Bush-era system allowing for the indefinite suspension of terror suspects at Guantanamo, Obama said his administration was working “to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values.” The president said he continued to believe that some suspected terrorists should be tried in federal criminal courts, but the actions announced by his administration strongly suggest that most militants will face military tribunals, not civilian trials.
The changes were outlined in a pair of directives from the White House and the Pentagon. Obama got the process underway by issuing an executive order on Monday afternoon, mandating that each of the 172 detainees now at Guantanamo Bay get the opportunity to contest their incarceration before the parole board within the next year.
The so-called “periodic review boards,” which will contain officials from the military, the Office of National Intelligence, and the departments of Defense, State, Justice, and Homeland Security, will conduct additional hearings every three years in which detainees will be told why they’re being held and given the chance to make an argument for why they should be freed. In addition to the formal legal proceedings, detainee files will be reviewed every six months to see if they should still be held.
Obama administration officials said the new parole boards represent a significant improvement to the legal standing of the detainees, who will—for the first time—be systematically told why they’re being held and given frequent opportunities to defend themselves and mount a case for their release.
House Armed Services Committee Chairman Buck McKeon, R-Calif., praised the administration for restarting the military commission process at Guantanamo Bay. But McKeon said it was “baffling” that the administration decided to tweak the existing system for holding and trying detainees through executive order, rather than by working with Congress.
“Not only has this White House failed to reach out to us to discuss the current executive order, but our offers to work with the administration have gone unanswered as well,” McKeon said. “The president, while clinging to the rhetoric of bipartisanship, hasn’t followed up with the appropriate actions.”
Monday’s move represents a striking reversal for the Obama administration, which is embracing Bush-era policies that it had once vowed to eliminate.
During the 2008 election campaign, then-Sen. Obama regularly denounced Guantanamo Bay and vowed to close the detention facility if elected president. In the days after his inauguration, Obama issued executive orders requiring an immediate case review for each of the detainees still held at Guantanamo Bay and declaring that the camp would be closed within one year.
Defense Secretary Robert Gates followed suit a short time later with a formal directive barring new military commission proceedings against all but a half-dozen of Guantanamo’s 172 detainees.
That ban has now been lifted, paving the way for military prosecutors to proceed with cases against dozens of other Guantanamo detainees. In a recent interview, Navy Capt. David Iglesias, one of the lead prosecutors in the Pentagon’s Office of Military Commissions, said his team was “prepared to open new commission proceedings quickly [once] the stand-down order is lifted.”
Administration officials declined to comment on whether suspected September 11 mastermind Khalid Sheikh Mohammed would be brought before a military tribunal. Attorney General Eric Holder said last year that he wanted to try Mohammed in federal court in New York City, but the plan ignited a firestorm of criticism from politicians who argued such a trial would pose security risks and cost as much as $1 billion. The White House has distanced itself from Holder’s plan, and Obama aides say Mohammed is virtually certain to eventually be tried before a commission at Guantanamo.
The administration moves reflect the changing legal and political dynamics surrounding Guantanamo Bay, which has been taking in captured al-Qaida and Taliban militants since early 2002.
A growing number of legal experts, including many who once advocated shuttering the facility entirely, believe that procedural and legal changes have made the military-tribunal process more equitable. A Supreme Court ruling in 2008 gave Guantanamo detainees the right to challenge their continued incarceration before civilian judges. It is much harder for prosecutors to introduce hearsay or evidence gathered from the brutal interrogation of other detainees. And the military has made it easier for civilian attorneys to travel to Cuba to represent Guantanamo detainees during their military trials.
The efforts to close Guantanamo have also been facing seemingly-insurmountable political opposition. The White House has been unable to persuade Congress, even when it was in Democratic hands, to authorize the funding necessary to close Guantanamo and move its detainees to facilities in U.S. mainland.
“Guantanamo Bay circa 2011 is not remotely the same as Guantanamo Bay circa 2002-2004,” Robert Chesney, a law professor at the University of Texas who has written extensively about the detention facility, said in a recent interview. “In an ideal world, we’d close Guantanamo down because of all of the baggage associated with our prior mistakes there. But this isn’t an ideal world, and it’s not at all clear that there are any better solutions out there which have a realistic chance of being put into effect.”