The White House insists it's making the best of a bad lot. But technocratic tinkering fails to address the basic moral anomaly
Mar. 8, 2011 (The Guardian/UK) -- In the nine years since the opening of the Guantánamo Bay detention facility, the country has moved incrementally towards institutionalising the existence of the facility. On Monday, the Obama administration took the process of institutionalization one step further, issuing both an executive order on detention -- the first since the pathbreaking executive order that began his presidency, calling for the closure of Guantánamo and promising a rethink on the detention policy -- and the revocation of the ban on military tribunals there.
In contrast to its predecessor, yesterday's executive order was anything but pathbreaking. It tacitly acknowledged that the premises of detention in the "war on terror" begun by the Bush administration in the fall of 2001 still hold. More tellingly still, it demonstrated that the Obama administration now not only accepts the fact of Guantánamo's existence as a given, but has also abandoned any debate over whether or not indefinite detention should be the policy of the land.
Under this new detainee review plan, the blueprint set out nearly a decade ago remains. At the outset, the underlying rationale for detention at Guantánamo Bay rests upon the September 2001 Authorization to Use Military Force (AUMF). So, too, as decreed in the November 2001 Military Order, the department of defence remains the lead player in implementing the guidelines of the executive order, although "consultation with the attorney general" is prescribed. In terms of the procedures for review of the cases, those, too, are essentially new and updated versions of those that constituted the administrative review boards and the combatant status review tribunals, in which each detainee's status was reviewed and chance for trial or release assessed. The justification for continued detention is familiar also – to wit, "to protect against a significant threat to the security of the United States."
Admittedly, the executive order requires certain measures of fairness going forward: for example, guaranteed advance notice to each detainee about his pending review, information about the factors in the detainee's case, access to a personal representative, and a defence that can include statements, information and witnesses. Moreover, the review process will now be every three years, with six-month file reviews of each case in the interim. The review board must make "prompt determination" on each case.
Even these reforms, however, are merely a formal statement of what has developed over time at Guantánamo. In sum, then, the basic premise of this new executive order is that the Obama administration has created as rational and fair a system of detention and review at Guantánamo as is possible.