Obama May Order Indefinite Detention for Some Gitmo Prisoners

With legislation pending in Congress that would preclude the transfer of terror-law detainees from Guantanamo Bay, Cuba, to the United States for trial or incarceration, the White House reportedly has prepared an executive order that would authorize indefinite detention for dozens of the prisoners there who have been deemed too dangerous to release and too risky to try in federal civilian court or by military commission.

At the same time, the draft order -- the existence of which was first reported by the Washington Post and ProPublica -- would evidently grant the detainees additional review/appeal rights, including the right to an attorney, the right of access to more evidence against them, and the ability to challenge their indefinite confinement before both federal judges and independent review boards, modeled after parole boards. The New York Times reported Wednesday that the order has not yet been reviewed by President Obama.

Forty-eight of the 174 prisoners remaining at the Guantanamo prison would be directly affected by the order, which has been the subject of internal debate among executive branch lawyers since Obama took office nearly two years ago, promising to close Gitmo as quickly as practical because of its symbolic significance in the war on terror. In May 2009, the president said of these men: "We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified."

The proposed order would not appear to impact, or be impacted by, provisions in the pending defense bill in the Senate, which would preclude the executive branch from transferring any of the Gitmo prisoners to the United States for trial or imprisonment. That measure, set for a vote this week, has been harshly criticized by Attorney General Eric Holder, who said it represents "an extreme and risky encroachment on the authority of the executive branch to determine when and where to prosecute terrorist suspects. . . . It would be a mistake to tie the hands of the president and his national security advisers now."

If implemented, the new procedures authorized by the executive order would be significantly different from those employed by officials during the Bush administration. Those earlier procedures, which were successfully challenged in federal court in a series of cases, generally prohibited the detainees from using lawyers and dramatically limited the ability of the prisoners to see or challenge the evidence against them.