Obama's Executive Order on Guantanamo Bay "Gitmo" Closure

Dated January 22, 2009, an executive order was signed by President Barack Obama to close Guantanamo Bay's (Gitmo) detention facilities within a year. However, the executive order does not address a plan of action for the detainees held there, and gives some arguably inaccurate statements as reasons for this move.

Habeas Corpus

Once such statement is that (Section 2c), "The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention."

However, the constitution does not guarantee habeas corpus to anyone and everyone. In Article 1, Section 9, it reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Historically, former presidents have used Gitmo as a holding center, and those currently held there appear to fit the designation of 'prisoner of war'. This being the case, they are not afforded habeas corpus. The reason, as explained in an article by Jonathon Shaw published in Harvard Magazine (January/February 2009) is that "During a war, prisoners are held not according to guilt or innocence, as in criminal cases, but as a practical matter: if released, they would likely resume the fight, so governments have traditionally detained enemy soldiers without charge until the hostilities end."

In the same article from Harvard Law School, Shattuck Professor of Law and Former U.S. Assistant Attorney General (2003 - 2004) Jack Goldsmith sheds further light on the Gitmo situation "These factors, combined with radical changes in international notions of justice and human rights, Goldsmith says, make this "legitimate power to detain a member of the enemy" suddenly seem "illegitimate in this war."

The Geneva Conventions

Additionally, Section 1 of the new Executive Order refers to multiple sections of the Geneva Conventions, however, the Guantanamo Bay detainees do not meet the Geneva Conventions' criteria of 'combatants' and therefore the Geneva Conventions does not apply. The Geneva Conventions' definition of combatants referred to in the executive order describes them "as members of the armed forces of a party to an international conflict, members of militias or volunteer corps including members of organized resistance movements as long as they have a well-defined chain of command, are clearly distinguishable from the civilian population, carry their arms openly, and obey the laws of war."

Additionally, the Council on Foreign Relations explains how the Department of Defense, the President, and military personnel may lawfully define captured individuals as 'enemy combatants' and 'non-enemy combatants'. These definitions do include Geneva Conventions protections in some cases.

The Department of Defense has clarified that Gitmo detainees have not been held 'indefinitely', but that the Constitution of the United States and the Geneva Convention do allow for extended detentions that are ended by 'the end of hostilities' and that detainees may be held 'without trial or counsel'.

New Era of Responsibility

Regardless of his reasoning for the executive order closing Guantanamo Bay, President Obama must carefully consider facts rather than politics before releasing the detainees if he is to keep America safe and uphold his oath of office that included the solemn promise to, "preserve, protect and defend the Constitution of the United States" to the best of his ability. As president, this ability would include the access he has to all facts, reports, intelligence, and experts publicly and privately available regarding the full scope of the Guantanamo Bay situation as well as the law. Additionally, the 'New Era of Responsibility' he referred to in his inaugural address would apply to him and his actions as well. There is no excuse for Executive Orders based on misrepresentations and inaccuracies.

Guantanamo Bay Detainee Release

According to Pentagon Press Secretary Geoff Morrell, 61 of the hundreds of previously released Guantanamo Bay detainees have returned to terrorism against the United States. Previously the recidivism rate was seven percent, but that number has climbed to eleven percent.

Contrast that with Camp Victory and other such detainment camps in Iraq. In a September 2008 report of the detention centers, less than one percent of those released "have been recaptured due to criminal activity." This is less than one percent of the thousands released.

The program for dealing with detainees consists of a teaching them job skills, providing some education, and having the take an oath of change in front of an Iraqi judge. The success rate indicates it is worth consideration if the goal is to keep American safe.

Perhaps such a plan enacted at Gitmo along with a tribunal system would be the answer and an example of the political 'unity' President Obama has been calling for.

Sources:

White House - Press Office

Executive Order: Review and Disposition of Individuals Detained At The Guantanamo Bay Naval base and Closure Of Detention Facilities

http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/

The United States Constitution

Article 1, Section 9 - Limits on Congress (Habeas corpus)

http://www.usconstitution.net/const.html#A1Sec9

The War and the Writ: Habeas corpus and security in an age of terrorism. Jonathon Shaw

Harvard Magazine, January/February 2009. Havard Law School Website January 7, 2009.

http://www.law.harvard.edu/news/spotlight/terrorism-and-national-security/habeas-corpus.html

Geneva Conventions: A Reference Guide. Society of Professional Journalists

"Combatant Status"

http://www.genevaconventions.org/

"Enemy Combatants" William Haynes

Council on Foreign Relations. December 12, 2002

http://www.cfr.org/publication/5312/enemy_combatants.html

"Guantanamo Solution Remains a Defense Department Priority, Spokesman Says". Army Staff Sgt. Michael J. Carden - American Forces Press Service. Washington. January 13, 2009.

American Forces Press Service - News Articles

http://www.defenselink.mil/news/newsarticle.aspx?id=52667

"Iraqui Detainees Return to Society Armed With Skills, Education". Army Staff Sgt. Michel Sauret - Special to American Forces Press Service. Camp Victory, Iraq. September 25, 2008.

American Forces Press Service - News Articles

http://www.defenselink.mil/news/newsarticle.aspx?id=51303

"From Mayberry to Metropolis: Guantanamo Bay Changes". Kathleen T. Rhem - American Forces Press Service. Naval Station Guantanamo Bay, Cuba. March 3, 2005.

American Forces Press Service - News Articles

http://www.defenselink.mil/news/newsarticle.aspx?id=31290