Author’s Note: This is the second report in an occasional series, Moving Forward with President Obama.
Closing Guantanamo Bay Prison, one of President Obama’s campaign promises of 2008, remains open as a move that requires the cooperation of Congress and the Justice Department.
In July, Matt Negrin of ABC News reported that Obama told a recruitment tool for terrorists. In response to Kroft asking if Obama would "take early action" to shut down the detention facility, the then-president-elect said "yes."of CBS in November of 2008 that the prison has been
To the president’s credit, however, there were early efforts to close the prison, but they were foiled by Congress. Lawmakers passed a bill preventing federal money from being used to transfer Guantanamo prisoners to the United States. Obama signed that bill into law, at the same time he issued a statement that disapproved of it. The provision was part of a bigger military bill that Obama said was too important not to sign, according to the ABC report.
After accepting the Nobel Peace Prize and touting the United States’ strength and repulsion for torture, President Obama issued a memo directing the defense secretary and the attorney general to prepare a prison in Illinois for Guantanamo detainees.
The deadline in Obama's executive order passed, and still the prison remained open. In March 2011, two years after he signed the order, Obama signed another executive order. This one set up a review process for detainees. The document sought to "establish, as a discretionary matter, a process to review on a periodic basis the executive branch's continued, discretionary exercise of existing detention authority in individual cases." There are legal implications for the transfer and ultimate closure of the prison, which were addressed in a report to Congress in 2009.
2009 report on legal implications for closing
The Congressional Research Service issued a report stating the closure of the Guantanamo detention facility might raise a number of legal issues with respect to the individuals formerly held there, particularly if those detainees are transferred to the United States for continued detention, prosecution, or release as originally proposed by Obama in 2008.
The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to persons held outside the U.S. This may have implications for the continued detention or prosecution of persons who are transferred to the United States from Guantanamo. The transfer of detainees to the United States may also have immigration consequences. Notably, some detainees might qualify for asylum or other protections under immigration law.
Legal issues related to transfer of detainees to the US or a foreign country
Transfer to foreign country: Reportedly there are several dozen inmates who remain at Guantanamo (often referred to as "Gitmo") either because no country will accept them or are there because of human rights concerns that prevent the US from transferring them to a country where they will be tortured. It is the policy of the US not to repatriate or transfer detainees to other countries where it is believed they will be tortured. There are a significant number, however, that could be transferred for continued detention if the US were assured they would be treated humanely according to the United Nations policies. Article III of the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and its implementing legislation prohibit the transfer of persons to countries where there are substantial grounds for believing (i.e., it would be “more likely than not”) that they would be subjected to torture.
Of the persons held at Gitmo who have been cleared for transfer or release, several dozen reportedly remain there either because no country will accept the detainee, or because human rights concerns have caused the United States to refrain from transferring the detainee to a country willing to accept them. A significant number of detainees could also potentially be transferred to other countries for continued detention if the United States was assured that UN Conventions against torture are respected, according to the congressional report.
Issues that need resolution include constitutional issues that might affect the prosecution of detainees in the US due to procedural and substantive protections in adjudicatory forums such as federal civilian courts, court-martial proceedings, and military commissions. Also, detainees would have a right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations of admissibility of hearsay and secret evidence in criminal trials.
All these issues are discussed at length in the Congressional Research Service report here.
In October, Obama stated he wanted to close Guantanamo Bay in an interview with New York Daily News. The president said he is determined to shut down the controversial prison camp here, just weeks after his administration bought a stateside prison once eyed for relocation of detainees overseas.reported in the
“I still want to close Guantanamo,” Obama told Stewart, according to a media pool report. “We haven’t been able to get that through Congress.”
Despite the legal implications which can be resolved with some coordinated effort, it’s time for Congress, the Justice Department and the president to work together to close the Guantanamo Bay detention camp.
Tomorrow: President Obama: Moving forward with civil liberties and the Patriot Act
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President Obama: Moving Forward on Comprehensive Immigration, Nov. 12, 2012