Obama will resume military commission trials of Guantanamo detainees

The White House announced Monday a two-part "new and improved" policy for the mess that is our nation's detainee policy. It includes resuming military commission trials of Guantanamo Bay detainees under what senior administration officials in a press call repeatedly, and given the context ironically and unfortunately, termed "enhanced military commissions." That's an adjective that should never be used in the context of these detainees, given their treatment at the hands of the previous administration.

The executive order on the detainee policy was released with this statement:

“From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values. Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees. I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system – including Article III Courts – to ensure that our security and our values are strengthened. Going forward, all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation and the values that define who we are as a nation.”

The American system of justice generally isn't understood to include indefinite detention without charge, but as Marcy Wheeler points out, the executive order (part two of today's announcement) creates is "the long-promised indefinite detention by fiat."

One detail of it that sticks out is the standard for continued detention:

Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

Note, this doesn’t appear to tie to any wrong-doing on the detainee’s part. “It” here appears to refer to “continued law of war detention,” suggesting that “it” may be necessary regardless of any threat posed by the detainee himself.

Also note that the standard “significant threat to the security of the United States” doesn’t invoke the war (ostensibly, the war against Afghanistan) itself. This seems very very wrong. It also seems designed to authorized the continued detention of the Yemeni detainees who we admit aren’t themselves a threat, but must be detained, our government says, because they come from a dangerous country.

The revised detention regime provides for periodic review—every three years, which should chill the heart of anyone who believed we'd see an end to the human rights nightmare Guantanamo has been—before a review board expanded to include the Departments of Homeland Security and State. As Armando points out as a failing, it doesn't not provide for a judicial review of the determinations of this board, contradicting one of the statements of principle President Obama laid out in his national security speech of May 21, 2009: "[W]e must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone." However, the review board is comprised solely of executive branch representatives, though detainees will have more access to a broader range of classified information to use in their defense.

What this policy unfortunately does, as Elisa Massimino, president of Human Rights First, says is put the nation on "the road toward institutionalizing a preventive detention regime.... People in the Mideast are looking to establish new rules for their own societies, and this sends a mixed message at best.”