View Full Version : Maybe GITMO wasn't such a bad idea?
Ironic?
http://latimesblogs.latimes.com/washington/2010/02/obama-guantanamo-gitmo-terror.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+topoftheticket+(Top+of+the+Ti cket)
Now that the Obama administration's Justice Department appears ready to deny the publicity-seeking self-proclaimed 9/11 mastermind, his alleged cohorts and their defense attorneys the brightly-lit global stage of Broadway and the Big Apple for the trials, the debate begins over where best to hold them.
Chicago's South Side Hyde Park doesn't seem to be on the list of possibles. Nor Eric Holder's neighborhood.
Gee, if only the United States had a secure military-type prison 90 miles offshore where it could not only safely house these accused possessed evildoers but try them as well.
Now comes a new Rasmussen Reports poll that could make President Obama hit his forehead with the palm of his hand: Why didn't we think of this?
Rasmussen found 44% of U.S. voters suggesting the trials of Guantanamo Bay prisoners be held in a place called Guantanamo Bay, which is 90 miles offshore on the island called Cuba.
Thirty-three percent don't like that idea, but weren't volunteering their town. And 23% couldn't decide.
Nineteen months ago, 54% of Americans thought these foreign guys should be tried by military tribunals on account of their allegedly being involved in a military conflict against the United States and its people.
As a result, the Obama administration decided to try them instead in civil courts as if the accused were American citizens full of rights. This decision can't be changed because Holder's Justice Department already dropped the military charges before placing the civil ones.
So now today, more than two-thirds of Americans (67%) think military tribunals are or would have been the route to go.
There's another homemade Obama catch. During the 2008 presidential campaign, as part of his change platform, the ex-community organizer promised to close the Guantanamo Bay detention facility because it had a bad reputation. As opposed to, say, any other prison on the planet, which typically are so well-thought-of that the facilities must have barbed wire all around to keep people from breaking in.
Guantanamo was especially ill-thought of among millions of people overseas who can't vote in the U.S.
In fact, despite warnings that it was more difficult than it seemed from Springfield, on his second day in office before he'd even found all the White House bathrooms, Obama signed a real Executive Order ordering the Guantanamo prison closed by the end of 2009.
He couldn't follow his own Executive Order. Missed the deadline. Completely blew it.
In fact, it was more difficult than it seemed from Springfield, or anywhere else for that matter. Turns out, few of the other countries that were so eager to have Guantanamo closed were so eager to imprison its inhabitants on their soil. And it also turns out that, if released, about 1 in 5 of these guys went right back into combat against American and allied troops, which is a dangerous thing.
So despite the promises and the Executive Order, in fact, there's still no new or maybe firm date for closing the Guantanamo Bay detention facility. Although, by golly, it will be closed. Believe in it.
In the meantime, however, the secure facility is still there. Still secure. So are the prisoners. And the best part is, Guantanamo has no member of Congress to get his/her behind shot off by angry voters in this fall's midterm elections. As The Ticket pointed out here could happen in Illinois Tuesday.
-- Andrew Malcolm
A true 'Tar Baby' of a situation for the current administration...interesting graphic...and so it goes...;)
Richard's $.02 :munchin
Closing Guantánamo Fades as a Priority
NYT, 25 June 2010
Stymied by political opposition and focused on competing priorities, the Obama administration has sidelined efforts to close the Guantánamo prison, making it unlikely that President Obama will fulfill his promise to close it before his term ends in 2013.
When the White House acknowledged last year that it would miss Mr. Obama’s initial January 2010 deadline for shutting the prison, it also declared that the detainees would eventually be moved to one in Illinois. But impediments to that plan have mounted in Congress, and the administration is doing little to overcome them.
“There is a lot of inertia” against closing the prison, “and the administration is not putting a lot of energy behind their position that I can see,” said Senator Carl Levin, the Michigan Democrat who is chairman of the Senate Armed Services Committee and supports the Illinois plan. He added that “the odds are that it will still be open” by the next presidential inauguration.
And Senator Lindsey Graham, a South Carolina Republican who also supports shutting it, said the effort is “on life support and it’s unlikely to close any time soon.” He attributed the collapse to some fellow Republicans’ “demagoguery” and the administration’s poor planning and decision-making “paralysis.”
The White House insists it is still determined to shutter the prison. The administration argues that Guantánamo is a symbol in the Muslim world of past detainee abuses, citing military views that its continued operation helps terrorists.
“Our commanders have made clear that closing the detention facility at Guantánamo is a national security imperative, and the president remains committed to achieving that goal,” said a White House spokesman, Ben LaBolt.
Still, some senior officials say privately that the administration has done its part, including identifying the Illinois prison — an empty maximum-security center in Thomson, 150 miles west of Chicago — where the detainees could be held. They blame Congress for failing to execute that endgame.
“The president can’t just wave a magic wand to say that Gitmo will be closed,” said a senior administration official, speaking on condition of anonymity to discuss internal thinking on a sensitive issue.
The politics of closing the prison have clearly soured following the attempted bombings on a plane on Dec. 25 and in Times Square in May, as well as Republican criticism that imprisoning detainees in the United States would endanger Americans. When Mr. Obama took office a slight majority supported closing it. By a March 2010 poll, 60 percent wanted it to stay open.
One administration official argued that the White House was still trying. On May 26, Mr. Obama’s national security adviser, James Jones, sent a letter to the House Appropriations Committee reiterating the case.
But Mr. Levin portrayed the administration as unwilling to make a serious effort to exert its influence, contrasting its muted response to legislative hurdles to closing Guantánamo with “very vocal” threats to veto financing for a fighter jet engine it opposes.
Last year, for example, the administration stood aside as lawmakers restricted the transfer of detainees into the United States except for prosecution. And its response was silence several weeks ago, Mr. Levin said, as the House and Senate Armed Services Committees voted to block money for renovating the Illinois prison to accommodate detainees, and to restrict transfers from Guantánamo to other countries — including, in the Senate version, a bar on Yemen, Saudi Arabia, Afghanistan, Pakistan and Somalia. About 130 of the 181 detainees are from those countries.
“They are not really putting their shoulder to the wheel on this issue,” Mr. Levin said of White House officials. “It’s pretty dormant in terms of their public positions.”
Several administration officials expressed hope that political winds might shift if, for example, high-level Qaeda leaders are killed, or if lawmakers focus on how expensive it is to operate a prison at the isolated base.
A recent Pentagon study, obtained by The New York Times, shows taxpayers spent more than $2 billion between 2002 and 2009 on the prison. Administration officials believe taxpayers would save about $180 million a year in operating costs if Guantánamo detainees were held at Thomson, which they hope Congress will allow the Justice Department to buy from the State of Illinois at least for federal inmates.
But in a sign that some may be making peace with keeping Guantánamo open, officials also praise improvements at the prison. An interagency review team brought order to scattered files. Mr. Obama banned brutal interrogations. Congress overhauled military commissions to give defendants more safeguards.
One category — detainees cleared for release who cannot be repatriated for their own safety — is on a path to extinction: allies have accepted 33, and just 22 await resettlement. Another — those who will be held without trials — has been narrowed to 48.
Still, the administration has faced a worsening problem in dealing with the prison’s large Yemeni population, including 58 low-level detainees who would already have been repatriated had they been from a more stable country, officials say.
The administration asked Saudi Arabia to put some Yemenis through a program aimed at rehabilitating jihadists but was rebuffed, officials said. And Mr. Obama imposed a moratorium on Yemen transfers after the failed Dec. 25 attack, planned by a Yemen-based branch of Al Qaeda whose members include two former Guantánamo detainees from Saudi Arabia.
As a result, the Obama administration has been further entangled in practices many of its officials lamented during the Bush administration. A judge this month ordered the government to release a 26-year-old Yemeni imprisoned since 2002, citing overwhelming evidence of his innocence. The Obama team decided last year to release the man, but shifted course after the moratorium. This week, the National Security Council decided to send the man to Yemen in a one-time exception, an official said on Friday.
Meanwhile, discussions have faltered between Mr. Graham and the White House aimed at crafting a bipartisan legislative package that would close Guantánamo while bolstering legal authorities for detaining terrorism suspects without trial.
Mr. Graham said such legislation would build confidence about holding detainees, including future captures, in an untainted prison inside the United States. But the talks lapsed.
“We can’t get anyone to give us a final answer,” he said. “It just goes into a black hole. I don’t know what happens.”
In any case, one senior official said, even if the administration concludes that it will never close the prison, it cannot acknowledge that because it would revive Guantánamo as America’s image in the Muslim world.
“Guantánamo is a negative symbol, but it is much diminished because we are seen as trying to close it,” the official said. “Closing Guantánamo is good, but fighting to close Guantánamo is O.K. Admitting you failed would be the worst.”
http://www.nytimes.com/2010/06/26/us/politics/26gitmo.html?adxnnl=1&partner=rss&emc=rss&adxnnlx=1277558024-ucOKwNH8Fi+sxy+PpqfhOA
http://news.yahoo.com/s/nm/20110108/pl_nm/us_obama_guantanamo_detainees
Oldrotorhead
01-09-2011, 12:25
I am not impressed with Obama's DOJ ability to prosecute anyone where there is a possibility political fall out, think Philly's Black Pussies. I was not impressed with Bush's handling of those nice people in Gitmo either. Seven years of no action from Bush then 2 more from Obama. Bernie Madoff should have been a Muslim murderer rather than a Jewish thief. :munchin
I am not impressed with Obama's DOJ ability to prosecute anyone where there is a possibility political fall out, think Philly's Black Pussies. I was not impressed with Bush's handling of those nice people in Gitmo either. Seven years of no action from Bush then 2 more from Obama. Bernie Madoff should have been a Muslim murderer rather than a Jewish thief. :munchin
"...not impressed with Bush's handling..."? Why not?
Peregrino
01-09-2011, 13:07
Given that the only SANE alternative is summary execution, either on the battlefield or against a berm (after extracting any information of intel value by whatever means necessary), my moral compass kind of likes indefinate incarceration at Club Gitmo. Reminds me of the average maximum security prison in the States - inmates live longer and better incarcerated than they ever would on the streets. Since enemy combatants aren't citizens why do we care. Truthfully they aren't even entitled to most LLW protections (UN "freedom fighter" clauses aside).
Bottom line - Sounds like Congress gave him an opportunity to save face with his base. One of the reasons I dislike our current method of getting bills through Congress. I would have liked to see this go through on its own - just to see what he would do if forced to address it directly.
Oldrotorhead
01-09-2011, 13:41
"...not impressed with Bush's handling..."? Why not?
There were no trials, for any of these people that are in Gitmo. After 6,7,or 8 years what possible intel. could they provide? Military tribunal works for me and I think pass muster with Geneva Conventions as well as other international agreements about dealing with these people. Of those released about 25% are believed to have returned to the fight according to recent news articles. If there is ever a good cause for a death penalty I think some of these people should qualify. What is the down side of killing some of these people? The big issue I have is that in seven years George Bush was in charge their status and condition remained the same. No executions, no prison sentences just getting fat at Gitmo.
This has continued for the first 2 years of Obama and likely will be the same for the next 2 years. If they are being held for the "duration" of hostilities just state that as our intentions and be done wit it.
I am not married to this opinion, if you disagree I'm open to listen to anyone with a logical argument. I realize my first post was short and did not explain my reason for the opinion, and I apologize for not making opinions clear.
There were no trials, for any of these people that are in Gitmo. After 6,7,or 8 years what possible intel. could they provide? Military tribunal works for me and I think pass muster with Geneva Conventions as well as other international agreements about dealing with these people. Of those released about 25% are believed to have returned to the fight according to recent news articles. If there is ever a good cause for a death penalty I think some of these people should qualify. What is the down side of killing some of these people? The big issue I have is that in seven years George Bush was in charge their status and condition remained the same. No executions, no prison sentences just getting fat at Gitmo.
This has continued for the first 2 years of Obama and likely will be the same for the next 2 years. If they are being held for the "duration" of hostilities just state that as our intentions and be done wit it.
I am not married to this opinion, if you disagree I'm open to listen to anyone with a logical argument. I realize my first post was short and did not explain my reason for the opinion, and I apologize for not making opinions clear.
Remember this?
http://www.npr.org/templates/story/story.php?storyId=5521062
After 6,7,or 8 years what possible intel could they provide?
To whom? How does the US handle its own when POW/captives return?
Of those released about 25% are believed to have returned to the fight according to recent news articles.
Personally, I think the numbers are higher but regardless; is that acceptable? Is this really a war of attrition?
I am aware of two kinds of jihadists. (Note: I believe there is a distinct difference between a Muslim and a jihadist.)
1) diehards that really believe they are working on behalf of Allah and Islam. They have swallowed the "72 virgin" thing hook, line, and sinker. The only way to convince them otherwise is to grant them their wish and kill them before they kill Americans or our allies.
2) opportunists who are in it for influence, power, and/or money. Based on my limited experience, these people are DEFINITELY affected by extreme, public violence. Such violence creates the idea they WILL be hunted any time, any place and a safe haven does not exist. These people can be converted or convinced to lay down their arms. "Did you see what they did to Abu? Yeah, I am going back to selling pomegranates and you can keep your jihad. I'm out."
Oldrotorhead
01-09-2011, 17:09
Remember this?
http://www.npr.org/templates/story/story.php?storyId=5521062
This was almost 5 years ago, and offered a course of action that would pass muster.
Below taken from your NYT article.
"Essentially, Justice Stevens said that the - yes, the president can order military tribunals under the uniform code of military justice, but unless he gets specific authorization from Congress or makes some sort of showing of necessity - which he didn't do here - he can't deviate in a substantial way from the way military trials are normally conducted. And the president has done that here."
So what is the problem with a Military Tribunal?
This was almost 5 years ago, and offered a course of action that would pass muster.
Below taken from your NYT article.
"Essentially, Justice Stevens said that the - yes, the president can order military tribunals under the uniform code of military justice, but unless he gets specific authorization from Congress or makes some sort of showing of necessity - which he didn't do here - he can't deviate in a substantial way from the way military trials are normally conducted. And the president has done that here."
So what is the problem with a Military Tribunal?
Easier to answer would be "what is the problem with Congress and the SCOTUS?"
Oldrotorhead
01-09-2011, 17:31
To whom? How does the US handle its own when POW/captives return?
Personally, I think the numbers are higher but regardless; is that acceptable? Is this really a war of attrition?
I am aware of two kinds of jihadists. (Note: I believe there is a distinct difference between a Muslim and a jihadist.)
1) diehards that really believe they are working on behalf of Allah and Islam. They have swallowed the "72 virgin" thing hook, line, and sinker. The only way to convince them otherwise is to grant them their wish and kill them before they kill Americans or our allies.
2) opportunists who are in it for influence, power, and/or money. Based on my limited experience, these people are DEFINITELY affected by extreme, public violence. Such violence creates the idea they WILL be hunted any time, any place and a safe haven does not exist. These people can be converted or convinced to lay down their arms. "Did you see what they did to Abu? Yeah, I am going back to selling pomegranates and you can keep your jihad. I'm out."
First hostilities may go on for decades. The United States decides when hostilities end. Almost all of these people can be held that long. Why not state that intent ?
Second if or when they are returned the United States has options, Return them to the country where they were captured, or to their native country. Neither place may really want them, but their country of origin would more or less have to take them. Unless they want us to keep them for life.
Third I don't disagree with you on your types of terrorists.
Fourth 25% ( or more) returning to the conflict. That does not say to me that what ever method was used to determine who to release was working very well.
Fifth I agree with your two kinds of terrorists. But those that may be captured a second time are we just to send them back to Gitmo or release them again into the wild?
Your points are well made, but I still question both presidents handling of these people. Over all I think George Bush was a good President, I believe he is an honest man that in most things acted in the best interest of our Country in mind. I voted for him twice and do not question that those votes were correct. I just think that the prisoners could have been handled more quickly and in some better way.
Oldrotorhead
01-09-2011, 17:37
Easier to answer would be "what is the problem with Congress and the SCOTUS?"
Overall I don't think Congress and SCOTUS have an easy answer either.
Congress is changing, maybe for the better. I think. SCOTUS? We can only hope they all live and do not retire in the next 2 years. Hopefully POTUS will change in two years otherwise some of them are older that dirt and will not last 6 years.
In most thing I think George Bush did a good job. I voted for him twice and do not regret those votes for him.
The Reaper
01-09-2011, 19:07
Anyone who gets released gets a tracker chip and a microcharge embedded in their mastoid sinus.
Don't want it, stay in GITMO or institute a no prisoners policy.
We could also announce how helpful they were before dumping them back into their society. I doubt that would go over very big with their homies.
TR
First hostilities may go on for decades. The United States decides when hostilities end. Almost all of these people can be held that long. Why not state that intent ?
Second if or when they are returned the United States has options, Return them to the country where they were captured, or to their native country. Neither place may really want them, but their country of origin would more or less have to take them. Unless they want us to keep them for life.
Third I don't disagree with you on your types of terrorists.
Fourth 25% ( or more) returning to the conflict. That does not say to me that what ever method was used to determine who to release was working very well.
Fifth I agree with your two kinds of terrorists. But those that may be captured a second time are we just to send them back to Gitmo or release them again into the wild?
Your points are well made, but I still question both presidents handling of these people. Over all I think George Bush was a good President, I believe he is an honest man that in most things acted in the best interest of our Country in mind. I voted for him twice and do not question that those votes were correct. I just think that the prisoners could have been handled more quickly and in some better way.
These are some great Points.. I would like to see a public debate over these and these articles.
TrueBeliever
01-10-2011, 21:44
"a program aimed at rehabilitating jihadists"
What the heck is that? And how does one re-habilitate a religious fanatic who has dedicated his/her life to persuing a holy war to kill all who are not faithful followers of Islam??
I think that we should all pitch in and purchase one-way tickets for these people so that they can become personally acquainted with AQ or the Talibs in order to better flesh out this rehabilitation program of theirs....if they survive and make friends, then our guys come home, right? :rolleyes:
"a program aimed at rehabilitating jihadists"
What the heck is that?
Firing Squad
Oldrotorhead
01-11-2011, 09:35
Firing Squad
#1 Then fed to the pigs? #2 Would that mean no Paradise and no virgins? If the answer to question #2 is yes then maybe question #1 is worth considering. Firing squad alone might just help them reach their goal of reaching Paradise, adding the factor of an unclean death I really don't know just asking. I know this would caused problems back in their neighborhood. I know it is an in your face action and I really don't think politicians would consider it.
Honest question is it worth considering?
#1 Then fed to the pigs? #2 Would that mean no Paradise and no virgins? If the answer to question #2 is yes then maybe question #1 is worth considering. Firing squad alone might just help them reach their goal of reaching Paradise, adding the factor of an unclean death I really don't know just asking. I know this would caused problems back in their neighborhood. I know it is an in your face action and I really don't think politicians would consider it.
Honest question is it worth considering?
Is what worth considering? Feeding them to the pigs? I don't give a fuck what you do with the remains. I don't believe in the 72 virgin thing anyway.
Oldrotorhead
01-11-2011, 10:26
Is what worth considering? Feeding them to the pigs? I don't give a fuck what you do with the remains. I don't believe in the 72 virgin thing anyway.
The point is not what you think or what I think of what we do with the remains it is what they think and what the consequences would be. I think firing squad is a reasonable option and I also don't care if they are fed to the pigs. Would this cause more or less attacks on the West. I really don't care what they think only how they act towards us. It this would make them step back and rethink their action, then good. If it caused more attacks and made more Jihads then it isn't a good idea. Would I expect this to become to become official policy? No I don't. That doesn't mean it would be effective. The Military has done an unbelievable job since 2001. The politician that set the rules and determine the goals have not always don't what is best for the Military or the American People in general. If our goal is to stop these people from attacking the West it has a lot of room for improvement. If this were just a Military issue there a lot of methods the Military could employ that could make this so expensive to the Jihadis that this could be over. The issue in my mind is political. This was really a question that politicians will not ask or answer. I think the motives of politicians are suspect, not your , or the military's motives.
This one might severely curtail the current administration's 2012 plans when their 'voting base' voices their feelings on it.
And so it goes...
Richard :munchin
U.S. Prepares to Lift Ban on Guantánamo Cases
NYT, 19 Jan 2011
The Obama administration is preparing to increase the use of military commissions to prosecute Guantánamo detainees, an acknowledgment that the prison in Cuba remains open for business after Congress imposed steep new impediments to closing the facility.
Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees.
Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.
Preparations for the tribunal trials — including the circulation of new draft regulations for conducting them — were described by several administration officials familiar with the discussions. A spokeswoman for the military commissions system declined to comment.
With the political winds now against more civilian prosecutions of Guantánamo detainees, the plans to press forward with additional commission trials may foreshadow the fates of many of the more than 30 remaining detainees who have been designated for eventual prosecution: trials in Cuba for war crimes before a panel of military officers.
The administration is also preparing an executive order to create a parole board-like system for periodically reviewing the cases of the nearly 50 detainees who would be held without trial.
Any charging of Mr. Nashiri would be particularly significant because the official who oversees the commissions, retired Vice Adm. Bruce MacDonald of the Navy, may allow prosecutors to seek the death penalty against him — which would set up the first capital trial in the tribunal system. The Cole bombing killed 17 sailors.
Mr. Nashiri’s case would also raise unresolved legal questions about jurisdiction and rules of evidence in tribunals. And it would attract global attention because he was previously held in secret Central Intelligence Agency prisons and is one of three detainees known to have been subjected to the drowning technique known as waterboarding.
Lt. Cmdr. Stephen Reyes of the Navy, a military lawyer assigned to defend Mr. Nashiri, declined to comment on any movement in the case. But he noted that two of Mr. Nashiri’s alleged co-conspirators were indicted in federal civilian court in 2003, and he made clear that the defense would highlight Mr. Nashiri’s treatment in C.I.A. custody.
“Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”
As a candidate, President Obama criticized the Bush administration’s tribunals. But after taking office, he backed a system in which some cases would tried by revamped military tribunals while others would go before civilian juries. He also pressed to close the Guantánamo prison.
But last month, Congress made it much harder to move Guantánamo detainees into the United States, even for trials in federal civilian courthouses. That essentially shut the door for now on the administration’s proposal to transfer inmates to a prison in Illinois and its desire to prosecute some of them in regular court.
More than a year ago, Attorney General Eric H. Holder Jr. designated Mr. Nashiri, Mr. Darbi and Mr. Obaydullah for trial in a military commission. But they have lingered in limbo amid administration indecision about broader terrorism prosecution policies. The paralysis followed a backlash against Mr. Holder’s proposal to prosecute suspected conspirators in the Sept. 11 attacks in a Manhattan federal courthouse.
Three other detainees were also approved for tribunals by Mr. Holder in 2009. Those cases have progressed — two pleaded guilty last year, and the third is scheduled for trial at Guantánamo next month. But the charges in those cases were left over from the Bush administration.
While Mr. Nashiri and Mr. Darbi had also been charged in tribunals in the Bush administration, their cases were later dropped and must be started over.
The process of charging Mr. Obaydullah had started under the Bush administration, but it was frozen before completion.
Mr. Nashiri would be the first so-called high-value detainee — a senior terrorism suspect who was held for a time in secret C.I.A. prisons and subjected to what the Bush administration called “enhanced interrogation techniques” — to undergo trial before a tribunal.
Another former such detainee, Ahmed Ghailani, was convicted in federal civilian court for playing a role in the 1998 Africa embassy bombings.
While Mr. Ghailani faces between 20 years and life in prison, many Republicans have pointed to his acquittal on 284 related charges — and a judge’s decision to exclude an important witness because investigators learned about the man during Mr. Ghailani’s C.I.A. interrogation — to argue that prosecuting terrorism cases in federal court is too risky.
Mr. Nashiri’s treatment was apparently more extreme than Mr. Ghailani’s. The C.I.A. later destroyed videotapes of some waterboarding sessions.
Moreover, the C.I.A. inspector general called Mr. Nashiri the “most significant” case of a detainee who was brutalized in ways that went beyond the Bush administration’s approved tactics — including being threatened with a power drill. Last year, Polish prosecutors investigating a now-closed C.I.A. prison granted Mr. Nashiri “victim status.”
An effort to prosecute Mr. Nashiri could also put a sharp focus on one of the crucial differences between federal civilian court and military commissions: the admissibility of hearsay evidence — statements and documents collected outside of court.
Much of the evidence against Mr. Nashiri consists of witness interviews and documents gathered by the F.B.I. in Yemen after the bombing. Prosecutors may call the F.B.I. agents as witnesses to describe what they learned during their investigation — hearsay that would be admissible under tribunal rules, but not in federal court.
It remains unclear whether the Supreme Court would uphold a tribunal conviction that relied on such evidence.
Mr. Nashiri’s case would also test another legal proposition: whether a state of war existed between the United States and Al Qaeda at the time of the Cole bombing — before the Sept. 11 terrorist attacks and the authorization by Congress to use military force against their perpetrators.
The United States initially handled the Cole attack as a peacetime terrorism crime, but the government now contends that a state of armed conflict had legally existed since 1996, when Osama bin Laden declared war against the United States.
The question is important because military commissions for war crimes are generally understood to have jurisdiction only over acts that took place during hostilities.
http://www.nytimes.com/2011/01/20/us/20trials.html
PART I OF II
From whitehouse.gov <<LINK (http://www.whitehouse.gov/the-press-office/2011/03/07/executive-order-periodic-review-individuals-detained-guant-namo-bay-nava)>>For Immediate Release
March 07, 2011
Executive Order--Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pusuant to the Authorization for Use of Military Force
EXECUTIVE ORDER
PERIODIC REVIEW OF INDIVIDUALS DETAINED AT GUANTÁNAMO BAY NAVAL STATION PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force of September 2001 (AUMF), Public Law 107-40, and in order to ensure that military detention of individuals now held at the U.S. Naval Station, Guantánamo Bay, Cuba (Guantánamo), who were subject to the interagency review under section 4 of Executive Order 13492 of January 22, 2009, continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Section 1. Scope and Purpose. (a) The periodic review described in section 3 of this order applies only to those detainees held at Guantánamo on the date of this order, whom the interagency review established by Executive Order 13492 has (i) designated for continued law of war detention; or (ii) referred for prosecution, except for those detainees against whom charges are pending or a judgment of conviction has been entered.
(b) This order is intended solely 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. It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law. Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.
(c) In the event detainees covered by this order are transferred from Guantánamo to another U.S. detention facility where they remain in law of war detention, this order shall continue to apply to them.
Sec. 2. 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.
Sec. 3. Periodic Review. The Secretary of Defense shall coordinate a process of periodic review of continued law of war detention for each detainee described in section 1(a) of this order. In consultation with the Attorney General, the Secretary of Defense shall issue implementing guidelines governing the process, consistent with the following requirements:
(a) Initial Review. For each detainee, an initial review shall commence as soon as possible but no later than 1 year from the date of this order. The initial review will consist of a hearing before a Periodic Review Board (PRB). The review and hearing shall follow a process that includes the following requirements:
(1) Each detainee shall be provided, in writing and in a language the detainee understands, with advance notice of the PRB review and an unclassified summary of the factors and information the PRB will consider in evaluating whether the detainee meets the standard set forth in section 2 of this order. The written summary shall be sufficiently comprehensive to provide adequate notice to the detainee of the reasons for continued detention.
(2) The detainee shall be assisted in proceedings before the PRB by a Government-provided personal representative (representative) who possesses the security clearances necessary for access to the information described in subsection (a)(4) of this section. The representative shall advocate on behalf of the detainee before the PRB and shall be responsible for challenging the Government's information and introducing information on behalf of the detainee. In addition to the representative, the detainee may be assisted in proceedings before the PRB by private counsel, at no expense to the Government.
(3) The detainee shall be permitted to (i) present to the PRB a written or oral statement; (ii) introduce relevant information, including written declarations; (iii) answer any questions posed by the PRB; and (iv) call witnesses who are reasonably available and willing to provide information that is relevant and material to the standard set forth in section 2 of this order.
(4) The Secretary of Defense, in coordination with other relevant Government agencies, shall compile and provide to the PRB all information in the detainee disposition recommendations produced by the Task Force established under Executive Order 13492 that is relevant to the determination whether the standard in section 2 of this order has been met and on which the Government seeks to rely for that determination. In addition, the Secretary of Defense, in coordination with other relevant Government agencies, shall compile any additional information relevant to that determination, and on which the Government seeks to rely for that determination, that has become available since the conclusion of the Executive Order 13492 review. All mitigating information relevant to that determination must be provided to the PRB.
(5) The information provided in subsection (a)(4) of this section shall be provided to the detainee's representative. In exceptional circumstances where it is necessary to protect national security, including intelligence sources and methods, the PRB may determine that the representative must receive a sufficient substitute or summary, rather than the underlying information. If the detainee is represented by private counsel, the information provided in subsection (a)(4) of this section shall be provided to such counsel unless the Government determines that the need to protect national security, including intelligence sources and methods, or law enforcement or privilege concerns, requires the Government to provide counsel with a sufficient substitute or summary of the information. A sufficient substitute or summary must provide a meaningful opportunity to assist the detainee during the review process.
(6) The PRB shall conduct a hearing to consider the information described in subsection (a)(4) of this section, and other relevant information provided by the detainee or the detainee's representative or counsel, to determine whether the standard in section 2 of this order is met. The PRB shall consider the reliability of any information provided to it in making its determination.
(7) The PRB shall make a prompt determination, by consensus and in writing, as to whether the detainee's continued detention is warranted under the standard in section 2 of this order. If the PRB determines that the standard is not met, the PRB shall also recommend any conditions that relate to the detainee's transfer. The PRB shall provide a written summary of any final determination in unclassified form to the detainee, in a language the detainee understands, within 30 days of the determination when practicable.
(8) The Secretary of Defense shall establish a secretariat to administer the PRB review and hearing process. The Director of National Intelligence shall assist in preparing the unclassified notice and the substitutes or summaries described above. Other executive departments and agencies shall assist in the process of providing the PRB with information required for the review processes detailed in this order.
(b) Subsequent Full Review. The continued detention of each detainee shall be subject to subsequent full reviews and hearings by the PRB on a triennial basis. Each subsequent review shall employ the procedures set forth in section 3(a) of this order.
(c) File Reviews. The continued detention of each detainee shall also be subject to a file review every 6 months in the intervening years between full reviews. This file review will be conducted by the PRB and shall consist of a review of any relevant new information related to the detainee compiled by the Secretary of Defense, in coordination with other relevant agencies, since the last review and, as appropriate, information considered during any prior PRB review. The detainee shall be permitted to make a written submission in connection with each file review. If, during the file review, a significant question is raised as to whether the detainee's continued detention is warranted under the standard in section 2 of this order, the PRB will promptly convene a full review pursuant to the standards in section 3(a) of this order.
(d) Review of PRB Determinations. The Review Committee (Committee), as defined in section 9(d) of this order, shall conduct a review if (i) a member of the Committee seeks review of a PRB determination within 30 days of that determination; or (ii) consensus within the PRB cannot be reached.
PART II OF IISec. 4. Effect of Determination to Transfer. (a) If a final determination is made that a detainee does not meet the standard in section 2 of this order, the Secretaries of State and Defense shall be responsible for ensuring that vigorous efforts are undertaken to identify a suitable transfer location for any such detainee, outside of the United States, consistent with the national security and foreign policy interests of the United States and the commitment set forth in section 2242(a) of the Foreign Affairs Reform and Restructuring Act of 1998 (Public Law 105-277).
(b) The Secretary of State, in consultation with the Secretary of Defense, shall be responsible for obtaining appropriate security and humane treatment assurances regarding any detainee to be transferred to another country, and for determining, after consultation with members of the Committee, that it is appropriate to proceed with the transfer.
(c) The Secretary of State shall evaluate humane treatment assurances in all cases, consistent with the recommendations of the Special Task Force on Interrogation and Transfer Policies established by Executive Order 13491 of January 22, 2009.Sec. 5. Annual Committee Review. (a) The Committee shall conduct an annual review of sufficiency and efficacy of transfer efforts, including:
(1) the status of transfer efforts for any detainee who has been subject to the periodic review under section 3 of this order, whose continued detention has been determined not to be warranted, and who has not been transferred more than 6 months after the date of such determination;
(2) the status of transfer efforts for any detainee whose petition for a writ of habeas corpus has been granted by a U.S. Federal court with no pending appeal and who has not been transferred;
(3) the status of transfer efforts for any detainee who has been designated for transfer or conditional detention by the Executive Order 13492 review and who has not been transferred; and
(4) the security and other conditions in the countries to which detainees might be transferred, including a review of any suspension of transfers to a particular country, in order to determine whether further steps to facilitate transfers are appropriate or to provide a recommendation to the President regarding whether continuation of any such suspension is warranted.
(b) After completion of the initial reviews under section 3(a) of this order, and at least once every 4 years thereafter, the Committee shall review whether a continued law of war detention policy remains consistent with the interests of the United States, including national security interests.
Sec. 6. Continuing Obligation of the Departments of Justice and Defense to Assess Feasibility of Prosecution. As to each detainee whom the interagency review established by Executive Order 13492 has designated for continued law of war detention, the Attorney General and the Secretary of Defense shall continue to assess whether prosecution of the detainee is feasible and in the national security interests of the United States, and shall refer detainees for prosecution, as appropriate.
Sec. 7. Obligation of Other Departments and Agencies to Assist the Secretary of Defense. All departments, agencies, entities, and officers of the United States, to the maximum extent permitted by law, shall provide the Secretary of Defense such assistance as may be requested to implement this order.
Sec. 8. Legality of Detention. The process established under this order does not address the legality of any detainee's law of war detention. If, at any time during the periodic review process established in this order, material information calls into question the legality of detention, the matter will be referred immediately to the Secretary of Defense and the Attorney General for appropriate action.
Sec. 9. Definitions. (a) "Law of War Detention" means: detention authorized by the Congress under the AUMF, as informed by the laws of war.
(b) "Periodic Review Board" means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.
(c) "Conditional Detention" means: the status of those detainees designated by the Executive Order 13492 review as eligible for transfer if one of the following conditions is satisfied: (1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available.
(d) "Review Committee" means: a committee composed of the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff.
Sec. 10. General Provisions. (a) Nothing in this order shall prejudice the authority of the Secretary of Defense or any other official to determine the disposition of any detainee not covered by this order.
(b) This order shall be implemented subject to the availability of necessary appropriations and consistent with applicable law including: the Convention Against Torture; Common Article 3 of the Geneva Conventions; the Detainee Treatment Act of 2005; and other laws relating to the transfer, treatment, and interrogation of individuals detained in an armed conflict.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) Nothing in this order, and no determination made under this order, shall be construed as grounds for release of detainees covered by this order into the United States.
[THE FORTY FOURTH PRESIDENT OF THE UNITED STATES]
THE WHITE HOUSE,
March 7, 2011.
mark46th
03-07-2011, 17:07
+1 TR. Let's direct link them to a drone...
Even when the Democrats had absolute power they didn't shut down Gitmo. Probably why it took less then two years for them to lose much of that power. Not that Republicans a great track record either.