The new review process will give detainees who have lost their habeas cases a possible opportunity for release through review boards held every six months, in which they’ll be entitled to an attorney provided they can afford to hire one or one volunteers to represent them. In his statement on the Gitmo news today, ACLU Director Anthony Romero dismisses those changes:
While appearing to be a step in the right direction, providing more process to Guantánamo detainees is just window dressing for the reality that today’s executive order institutionalizes indefinite detention, which is unlawful, unwise and un-American. The detention of Guantánamo detainees for nine years without charge or trial is a stain on America’s reputation that should be ended immediately, not given a stamp of approval. Moreover, the procedures for providing more process are flawed as they vest too much discretion and power in the Secretary of Defense, essentially asking the fox to guard the hen house.
Ken Gude, with the Center for American Progress, cuts the administration more slack, saying that these are “big improvements” that will make for a fairer process than the one that existed under the prior administration:
The detainee’s representative is an advocate on behalf of the detainee and is tasked with challenging the government’s presentation. And detainees can use their own private counsel as long as they have the necessary security clearances.
The standard for continued detention is clearly articulated: ‘necessary to protect against a significant threat to the security of the United States.’ It might sound vague, but having one defined standard is a huge improvement. And the inclusion of the word ‘significant’ should not be overlooked as trivial.
The PRB is specifically ordered to consider the reliability of all information it receives, whereas the Bush review process required a presumption that the government’s information was reliable and accurate.
I’m not sure whether or not Gude is right that the fact that detainees will be held only if there it is “necessary to protect against a significant threat to the security of the United States,” is all that meaningful. That seems like an entirely subjective standard, one that could just as easily be used to justify any decision to detain after the fact.
