The White House announced a new policy on Monday for moving forward with the trials of some prisoners at the U.S. detention facility at Guantanamo Bay, while also setting forth a new process for keeping tabs on the prisoners who won't be tried or released anytime soon.
President Barack Obama's administration is framing the move as a continuation of its pledge to close the prison at Guantanamo Bay. But by restarting new military commission trials and reforming the procedures to deal with prisoners who are set to remain there for years, the administration is implicitly acknowledging that the prison isn't being shuttered in the near future.
"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," Obama said in a statement. The new policy will be implemented through an order by U.S. Secretary of Defense Robert Gates allowing for the resumption of military tribunals, and an executive order that updates the process for reviewing the threat posed by prisoners at Guantanamo.
Five senior administration officials explained the details of the new policy in a conference call with reporters on Monday afternoon. They made the case that the president is still committed to closing the prison at Guantanamo Bay, as he affirmed in his May 2009 speech at the National Archives.
"The President does remain committed to closing the prison at Guantanamo Bay, based on the judgment of our military commanders and our national security team that it hinders our security in the long run," a senior administration official said.
For those prisoners who the U.S. government is not prepared to prosecute but cannot be released due to concerns they still pose a threat, the administration is establishing a new "periodic review board," made up of representatives from the Departments of Defense, Justice, State, and Homeland Security, to assess whether each prisoner's detention "is necessary to protect against a significant threat to the security of the United States." Every prisoner will receive a full review within one year of today and another full review every three years.
The new prisoner periodic review boards are an effort to reform the administrative review boards, which have been used to judge whether prisoners should be held without trial up until now. However, it is still unclear how this policy will be implemented.
The administration contends that civilian courts could still be used for terror trials, but there are no definite plans to do so right now.
"We are reaffirming our commitment to Article III (civilian) courts as a fundamental tool of American justice and as a tool that the government has to bring terrorists to justice has been the case frequently in recent months and years," another senior administration official said.
In a related move, Secretary of State Hillary Clinton announced today that she asked the chairman and ranking member of the Senate Foreign Relations Committee to begin work to ratify Additional Protocol II to the 1949 Geneva Conventions, which mandates stricter enforcement measures to guarantee the humane treatment of prisoners. She also announced that the United States will voluntarily adhere to the norms established under Article 75 of Protocol I in international armed conflicts, which also prohibits inhumane treatment of prisoners.
"These steps we take today are not about who our enemies are, but about who we are: a nation committed to providing all detainees in our custody with humane treatment," Clinton said in a statement.
Military law experts said that the Obama administration's moves represent progress in its efforts to break the legal logjam at Guantanamo Bay, but also an admission that the president's stated goal of quickly closing the prison will be again delayed.
The administration's decision to implement its new policy through executive order also bypassed efforts to involve Congress in the decision-making process.
Benjamin Wittes, a senior fellow at the Brookings Institution, said that the administration had promised to work with Congress to establish a new process for military commissions that updates the 2006 military commissions law, but now they've decided to simply push forward on their own.
"It's the beginning of a breaking of a paralysis that has been devastating for this administration on this subject," said Wittes. "But it's only a beginning and whether they break further free remains to be seen."