Street art of a hooded detainee at Guantanamo Bay by The 2 Tone Man

The Obama Administration will be making indefinite detention a more institutionalized part of U.S. policy in the so-called war on terrorism. An executive order to set up a “parole board” to periodically “review evidence” against “prisoners” being held at the Guantanamo Bay prison in Cuba is being discussed and is expected to be signed by Obama next year.

ProPublica and the Washington Post were the first to report on the executive order. ProPublica suggests “the White House alone” would “manage a review process for those it chooses to hold without charge or trial.” The order, “being drafted jointly by White House staff in the National Security council and the White House counsel, will offer detainees in this category a minimal review every six months and then a more lengthy annual review. Detainees will have access to an attorney, to some evidence against them and the ability to challenge their continued detention.”

The New York Times notes, “The proposal would replace the ‘annual review boards’ that the Bush administration had used to revisit its decision to hold each prisoner. Under that system, which the Obama administration shut down, a panel of military officers periodically reviewed the accusations against and talked to each prisoner who wanted to participate. The prisoners were not represented by lawyers. Officers then decided whether a prisoner was still a threat or should be released.”

In contrast, the new system would supposedly afford detainees more opportunities to challenge their detention.

The move toward a system of indefinite detention is undoubtedly a response to the Obama Administration’s failure to close the Guantanamo Bay prison, as Obama committed his Administration to doing when he signed an executive order during his first days as president. But, that isn’t the only reason for this move. ProPublica claims, the drafting of this order also “stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.”

The American Civil Liberties Union (ACLU) reported on Obama’s disappointing approval of indefinite detention in a report it released this year titled, “Establishing the New Normal.” From the report, which detailed the Administration’s efforts and struggle to close Guantanamo, it noted:

“Of far greater significance than the administration’s failure to meet its own one-year deadline is its embrace of the theory underlying the Guantanamo detention regime: that the Executive Branch can detain militarily–without charge or trial–terrorism suspects captured far from a conventional battlefield. President Obama first expressly endorsed this claim of authority in May of 2009, in a major speech at the National Archives. The President stated that the Guantanamo detainees whome the administration deemed dangerous, but who “could not be prosecuted” because of a lack of reliable evidence, would be held indefinitely without trial, and he proposed that Congress provide legislative authority for a new detention regime. Although, to its credit the administration has now publicly stated that it will not support any new legislation expanding detention authority, it has continued to assert, in habeas corpus proceeding involving Guantanamo and Bagram detainees, a dangerously overbroad authority to detain civilian terrorism suspects militarily. And its task force has identified 48 Guantanamo detainees who will be held indefinitely without charge or trial…”

The Center for Constitutional Rights (CCR) has posted a “habeas scorecard” (habeas corpus is due process, a right to petition a court to determine whether or not you should be released from prison custody). The scorecard “provides an overview of habeas case outcomes for men who have been illegally detained at the detention facility in Guantánamo Bay, Cuba.” The numerical summary as of November 2, 2010, was: total habeas cases decided: 56; habeas cases granted: 37; habeas cases denied: 19; habeas granted and released: 23; habeas granted and still detained: 14; current Guantanamo population: 174.

In the Boumediene v. Bush/Al Odah v. United States decision, handed down on June 12, 2008, the detainees were determined to have a right to habeas corpus, the right to challenge their detention before a neutral judge in a real court. This right, which was granted to detainees, was something the detainees had been struggling to get recognized since 2002. It was outlined by Justice Anthony Kennedy that “the underlying purpose of habeas corpus” was “to allow the courts to act as a check against the abuse of Executive Power.”

As CCR notes in a factsheet posted on its website, “In 2004, in Rasul v. Bush, the Supreme Court upheld the detainees’ statutory right to habeas corpus, and in 2006, in Hamdan v. Rumsfeld, the high court rejected the Bush administration’s framework for military commissions and upheld the rights of the detainees under the Geneva Conventions.”

Time and time again, courts have upheld the rights of detainees to an extent that has been uncomfortable for political leaders in this country. This executive order appears to indicate a move toward developing an extralegal system for handling detainees that would limit the amount of political dilemmas leaders experience. It appears the order would set up a board that would operate outside of the purview of the courts. It would limit the likelihood that courts would create news when they go against the conventional political wisdom of officials in the Executive Branch and actually uphold civil liberties by deciding in favor of detainees.

What would the impact be on trials like the one now-convicted Ahmed Ghailani enjoyed? That trial showed that justice can work. But, the judge threw out multiple charges because those charges rested on evidence that had been illicitly obtained. Would this remove the necessity to hold civilian trials for these detainees?

This would also make it more possible to admit evidence obtained by torture into proceedings meant to determine whether to release a detainee or not. When considering how the Obama Administration has been strongly urged to not resettle detainees by political leaders in Congress, it is likely any board handling detainee matters would err on the side of caution and find any way to keep the detainee in detention. Instances where the board was faced with letting detainees be released would undoubtedly present quandaries for any administration.

It seems like the establishment of this board would further politicize a matter of justice and law that should be handled outside of the realm of politics. Placing control of a board in the hands of the Executive Branch would make it vulnerable to elections and majority opinion polls. It would put power in the hands of people who often practice politics of the possible and seek to cut corners when faced with legal matters because they desire certain outcomes that won’t put their brand as leaders at risk.

Not only does it appear that President Obama does not have the authority to argue for the institutionalization of indefinite detention in U.S. policy, but it also seems this is a move, which demonstrates the Obama Administration wants to limit the “bungling” of detainee cases, which has often happened as a result of a crazy little thing called the rule of law.