The Obama administration’s apparent plan to draft an indefinite detention policy with periodic reviews of evidence against dozens of prisoners held at Guantanamo Bay shouldn’t come as a surprise, a lawyer with the Center for Constitutional Rights told TPM in an interview. But they are concerned that it could result in less transparency for lawyers and other observers — and it could mean that more detainees will face a lifetime of imprisonment with no chance to review the evidence against them or appeal the decisions made about them.
“This administration is usually entirely passive in response to its opponents attempts to undermine its policy agenda, so to that extent it is a surprise when they do anything,” Shayana Kadidal, senior managing attorney of the Guantánamo project at the Center for Constitutional Rights, told me in an interview. “I think it’s one of those situations where after the fact, looking back on it, it perhaps makes some sense and it’s somewhat predictable.”
Kadidal said that Americans have “no idea” who is in the category of people who the administration wants to hold but can’t, for whatever reason, bring to trial.
“My primary concern about this executive order is that it may be intended primarily as cover for moving people between those two piles — for taking people who initially made a very deliberate decision that they were triable and should be tried and moving them into this pile where they need to do nothing,” Kadidal said.
Kadidal says he doesn’t believe the category of people who can’t be tried but can’t be released really exists. “It seems to really be a fallacy. If the only evidence you’ve got on somebody is evidence — quote unquote evidence — that is derived from torture, than you don’t really have any evidence. We exclude torture from consideration in judicial proceedings not just as a disincentive to torture… but also because it is inherently unreliable.”
“The very existence of this category of people, pile of people that they want to sit on and do nothing with is problematic,” Kadidal said.
As ProPublica reported, more inmates at Guantanamo are facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected, despite the fact that the administration pledged to close the facility nearly two years ago.
Obama administration officials also recently said they plan to reject efforts by Congress to limit the president’s options on Guantanamo Bay, setting up a showdown between the executive branch at the GOP. But Kadidal says that for “practical purposes,” the administration has given up on closing Guantanamo.
Kadidal said it was hard to say if the Center for Constitutional Rights would be challenging the executive order of indefinite detention before it was officially released. He said that depending upon the details of the review process, the Obama administration could end up making the same argument that the Bush administration made to keep courts from getting involved in the detainee process.
“It’ll be interesting to see what this looks like,” Kadidal said.
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