New Obama EO establishes indefinite detention at Gitmo

Allahpundit noted yesterday the reversal of Barack Obama on the issue of military commissions at Guantanamo Bay, but as it turns out, that was not the most significant about-face at the White House yesterday.  The Washington Post reports that Obama paired the executive order restarting the military commissions with another that re-establishes indefinite detention of dozens of inmates at Gitmo, a practice that Obama blasted as a candidate during the 2008 election cycle:

President Obama signed an executive order Monday that will create a formal system of indefinite detention for those held at the U.S. military prison at Guantanamo Bay, Cuba, who continue to pose a significant threat to national security. The administration also said it will start new military commission trials for detainees there.

The announcements, coming more than two years after Obama vowed in another executive order to close the detention center, all but cements Guantanamo Bay’s continuing role in U.S. counterterrorism policy. …

Rep. Peter T. King (R-N.Y.), chairman of the House Homeland Security Committee, said the order vindicated Obama’s predecessor. “I commend the Obama Administration for issuing this Executive Order,” he said in a statement. “The bottom line is that it affirms the Bush Administration policy that our government has the right to detain dangerous terrorists until the cessation of hostilities.”

The executive order applies to at least 48 of the 172 detainees who remain at Guantanamo Bay. An inter-agency panel led by Justice Department lawyers determined that this group could not be prosecuted in military commissions or in federal court because evidentiary problems would hamper a trial. But intelligence assessments also concluded that these detainees remain a serious threat and could not be safely repatriated or resettled in a third country. The administration said it will hold reviews for detainees it plans to prosecute but has not charged.

As King states, the policy of holding those captured in a time of war until the end of hostilities has simply been common practice in warfare for centuries.  The problem this creates for these specific detainees, who are also unlawful combatants under the rules of war and therefore not covered by most of the Geneva conventions for POWs, is that this war will almost certainly have no formal end.  However, that is not the fault of the US but of the terrorists that have conducted warfare against America for almost 20 years, going back to the first World Trade Center attack and through the deadly suicide attack on the USS Cole before 9/11.

When the Bush administration made that argument, his political opponents accused him of “shredding the Constitution,” among other acts, and demanded habeas corpus rights through the federal courts.  Barack Obama was one of those critics, arguing in June 2007 that not only did Gitmo need to be closed but that “we’re going to restore habeas corpus. … We’re going to lead by example – by not just word but by deed. That’s our vision for the future.”  Even before taking office, his team began hitting the backup lights on that statement, however.  By May 2009, Obama himself began hinting that Bush’s policy may not have been so bad after all.

Obama can certainly try to shift blame on the military-commissions reversal on a balking Congress.  It’s going to be more difficult to say the same with indefinite detention.  Those 48 cases wouldn’t have come to the federal courts in any circumstances, whether Congress blocked funding for detainee transfers or not.  Obama had a choice to put them up for military commissions and let the chips fall where they may, but apparently doesn’t want to risk letting some very dangerous men out of Gitmo to have them return to conducting warfare against the US.  That’s entirely Obama’s decision.  Will he have the grace to admit that his predecessor made the right call on refusing to release unlawful combatants while hostilities continue?  I’d call that … unlikely.

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