While the order is new, most of the ideas [3] it contains are not. This is the third time such a board has been created for nearly the same purpose. Two similar processes to review detainee cases were in place during the Bush administration. Like its predecessors, the Obama administration’s review process will operate outside the courts and will be subject to no independent review. Also like the Bush White House, the Obama administration alone will choose all members of the review board and appoint a “personal representative” to advocate on behalf of the detainees.

The major difference is that the White House, sidestepping claims that detainees have a right to counsel, will allow them to hire private attorneys The order states that the government will not pay legal fees. While detainees will have access to some evidence against them, the government will choose what evidence to share. The process is meant to be more adversarial than it had been under the Bush administration. Detainees can submit their own evidence to the review board but will be permitted to call only those witnesses the government determines to be reasonable. It is unclear whether a detainee can dismiss his personal representative or how the lawyer and representative will work together. The order allows a detainee to make his case for release once every three years.