During the Presidential Campaign, President Obama promised to close Guantanamo Bay and to abandon Military Commissions. Shortly after taking office, he halted Military Commissions that were then underway, in order to explore other alternatives. Nearly three years later, Guantanamo Bay remains opens, and President Obama has recently resumed Military Commissions.
With the exception of a lone amendment to the Military Commissions Act, the procedures governing Military Commissions under President Obama and those under President Bush are virtually indistinguishable.
What is distinguishable is that now, under President Obama, many detainees will receive no procedural protections under the Military Commissions Act, but instead will face indefinite detention under rules that afford fewer procedural protections to detain someone for life than previously applied to temporarily hold detainees during war time.
What the Obama Administration gives with one hand, it takes away with the other. Ironically, the Obama Administration affords fewer procedural protections to justify holding detainees indefinitely than President Bush authorized in order to hold detainees during a time of war.
President Obama proposes that, in those instances where insufficient evidence exists to bring detainees to trial, the United States may hold them indefinitely – even after the war ends. This declaration is a step backwards, and could potentially put U.S. troops – and even civilians – at risk for indefinite detention by dictatorial regimes.
The United States holds itself out as a stalwart liberty and an advocate for procedural protections. We consistently criticize countries that hold prisoners in substandard conditions that lack fundamental procedural protections. It is difficult to understand how the United States can hold people it deems “dangerous” forever, while criticizing countries like Iran for doing the same thing to U.S. citizen. The United States should act cautiously when adopting provisions that allow indefinite imprisonment without a trial.
The United States took one step forward when it improved procedural protections contained in the Military Commissions Act, and simultaneously took two steps back when it decided to exclude detainees from these same procedural protections and indefinitely detain them without any trial.
Rotunda, Kyndra Miller
"A Short Comment on Current Detainee Policy: One Step Forward and Two Steps Back,"
ConLawNOW: Vol. 3
, Article 3.
Available at: https://ideaexchange.uakron.edu/conlawnow/vol3/iss1/3