Extrajudicial detention, U.S., Barack Obama Administration

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Barack Obama, on taking office as President of the United States, faced the reality of several hundred prisoners in extrajudicial detention at Guantanamo Bay detention camp, and possibly others at U.S. facilities in Afghanistan and Iraq. He had made a campaign promise to close Guantanamo, which has not happened in his first year but the Administration is moving to do so. Some prisoners have been freed, some deported, five associated directly with the 9-11 Attack scheduled to be tried in Federal court (U.S. v. Khalid Sheikh Mohammed, et al.‎), and no decision has been made for others.

In his announcement on 13 November 2009, Attorney General Eric Holder also said that five other defendants would still go before military commissions. [1]

Alternative legal and judicial models

The policy of closing Guantanamo has neither motivated the Administration to ask for new legislation on detention, nor the Congress to take an initiative. As a consequence, decisionmaking has passed, significantly, to the courts. [2]

One analysis, on which the Administration has made no comment, is a proposal by Brookings Institution fellows to develop a "Model Law for Terrorist Incapacitation."[3]

Another approach is multinational. Most of the detainees to be held are Afghan or Yememite. "Some European officials, who would like to see Guantanamo Bay closed without instituting indefinite detention, are advocating the creation of an internationally funded rehabilitation center for terrorism suspects in Yemen and possibly Afghanistan. They say such a facility would gradually allow the transfer of all detainees from those countries back to their homelands, according to two sources familiar with the plan. European officials hope to raise the issue at an international conference in London next week that will address the situations in Yemen and Afghanistan." [4] "We are running out of options, and the administration needs to seriously consider this," said Sarah E. Mendelson, a fellow at the Center for Strategic and International Studies and the author of a report on closing Guantanamo Bay.[5] She said "There is lots of really good expertise on rehabilitation, and the administration needs to invest in it." The CSIS report was a significant input into the January 2010 Obama Administration Executive Order; according to a Cornell University magazine article, it produced 90% of the content. The study began in September 2007, with Ford Foundation funding. [6]

Continued extrajudicial detention

While the President has said that some prisoners are too dangerous to be released, but, for reasons not always disclosed, should not be tried in a civilian court, the legal structure for such indefinite discussion is unclear. On 22 January 2010, a U.S. Department of Justice task force made more specific recommendations. Of the 196 prisoners still at Guantanamo Bay detention camp:[4]

  • 35 to be prosecuted in federal or military courts
  • at least 110 who can be released, either immediately or eventually
    • 80 detainees, including about 30 Yemenis, eligible for immediate repatriation or resettlement in a third country.
    • About 30 other Yemenis were placed in a category of their own, with their release contingent upon dramatically stabilized conditions in their home country, where the government has been battling a branch of al-Qaeda and fighting a civil war. In January 2010, however, there is a freeze on all resettlement in Yemen while the Northwest Airlines Flight 253 attack is still being evaluated
  • nearly 50 who must be detained without trial

Four prisoners have been repatriated or resettled to third countries, including 11 in Europe. The administration anticipates that about 20 detainees can be repatriated the summer of 201, and it has received firm commitments from countries willing to settle an additional 25 detainees who have been cleared for release.

The Administration has planned that a new federal prison in Thomson, Ill., would hold the first and third category, but "Congress has barred the transfer of the detainees to the United States except for prosecution. And a coalition of Republicans opposed to any transfers and some Democrats critical of detention without trial could derail the possibility of using the Thomson facility for anything other than military commissions, according to congressional staffers."

The Federal government has stated its intention to acquire the little used Thomson Correctional Institute from the state of Illinois (U.S. state) and convert it to "supermax" standards, with facilities for military commissions. This facility would replace Guantanamo.[7]