President Obama signed an executive order Monday that ends a two-year ban on military trials at Guantanamo Bay.
The president had campaigned on a promise to close the detention facility, but that's turned out to be difficult. His actions set up a system that could keep Guantanamo operating for some time.
The administration laid out a new process for dealing with detainees in Cuba. There have always been essentially three groups of people the administration was dealing with: those it wanted to try in federal civilian courts; those who would be tried in military commissions; and a third category that no one quite knew how to deal with — people who couldn't be tried for various reasons but in the administration's view were too dangerous to release.
For the first time, the administration has actually addressed that last group directly.
Changing Rules
Two years ago, the Obama administration put all new trials in the commissions on hold so it could review the status of the 170 or so detainees who are still being held. It announced Monday that this review is complete.
In those two years, the Obama administration also tinkered at the edges of the military commission system, changing rules of evidence and some defense procedures that defense attorneys had previously thought were unfair. Not everyone agrees that the military commissions are completely fair, but the consensus is the changes — such as changes in hearsay evidence and discovery — made them more so.
Civilian trials seem to have been the most controversial. Congress has passed laws that make it virtually impossible for the administration to transfer Guantanamo detainees here for trial in regular federal court.
The only detainee who was essentially grandfathered in was Ahmed Ghailani, who was detained for his role in the 1998 East Africa embassy bombings. He was charged with hundreds of counts of murder and conspiracy and ended up being convicted of a single charge of conspiracy. In the end, he did get sentenced to life in prison, but critics of federal trials saw this as too close a call.
Codifying A System
Finally, there are detainees who don't seem to fit in either system.
The president has actually codified a system detaining people indefinitely. This is for people deemed too dangerous to release but who for various reasons can't be tried either in military commissions or federal courts. The executive order essentially sets up a review process for people who have been put in this third category.
That process would take place before a review board with representatives from the Department of Defense, Justice Department, State Department and some other agencies. There is an initial review, and then the administration will review the information on the detainee every six months. The idea is that these detainees have some recourse so they just aren't locked up and forgotten.
Administration officials say the president is still committed to closing Guantanamo Bay, but on some level this is recognition that that's still a long way off.
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