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State Department announced office to close Guantánamo Bay will be shuttered
Our founders established a country based on the rule of law, not the convenience of either prisoners or the government. Whether we look at Magna Carta, the Petition of Right, the Declaration of Independence or our Constitution, it is a keystone of the rule of law that no one be indefinitely detained without indictment and conviction in a regular court of law. The only exceptions are legitimate prisoners of war, protected by the Geneva Conventions.
Executive Order – January 22, 2009
EXECUTIVE ORDER — REVIEW AND DISPOSITION OF INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL BASE AND CLOSURE OF DETENTION FACILITIES
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows …
Sec. 3. Closure of Detention Facilities at Guantánamo. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.
Sec. 4. Immediate Review of All Guantánamo Detentions.
(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantánamo (Review) shall commence immediately.
(b) Review Participants. The Review shall be conducted with the full cooperation and participation of the following officials …
The Problem: Guantánamo Detainees Trapped by Inaction
Despite the strong statements made by myriad countries for the closure of Guantánamo, relatively few countries have thus far agreed to accept these abandoned detainees – non-citizens in need of safe haven because they would face torture or persecution if repatriated to their home countries. The need for countries to intervene to provide protection for these at-risk detainees is critical. The possibility that men will be sent by the U.S. government to their home countries despite their legitimate fear of persecution or torture is not an abstract concern. The U.S. government has forcibly returned Guantánamo detainees to countries that are recognized to have committed egregious human rights abuses – including extrajudicial killings, torture and disappearances – despite pleas not to be sent there. Further, the U.S. government has vehemently resisted any attempt by detainees and their attorneys to halt transfers, even where very specific, verifiable and objective fear of persecution and torture exists. In passing the Military Commissions Act in 2006, Congress aimed to limit judicial review for the men imprisoned at Guantánamo, including by prohibiting them from legally challenging transfers to countries where they will likely be tortured or subjected to persecution.
Supreme Court ruling, Habeas Corpus and Guantánamo detainees
The Military Commissions Act of 2006 was unconstitutional. The tribunals endorsed by the MCA do not comply with the rules of international warfare or with the Constitution. This issue was the focus of judicial debate in the Supreme Court decision Hamdan v. Rumsfeld (2006). Salim Hamdan, Osama bin Laden’s chauffeur, was arrested as a suspected terrorist. The Court granted Hamdan’s petition for habeas corpus and used his case to tackle the constitutionality of the MCA as well as the habeas corpus issue. The Court held “the military commission at issue lacks the power to proceed because its structure and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”
UN rights chief speaks out against US failure to close Guantánamo detention facility