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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

White House Says Tribunals Can Resume at Guantánamo

The New York Times reports on Monday, March 7, in an article entitled "White House Says Tribunals Can Resume at Guantanamo," that President Barack Obama has lifted a two-year freeze on new military trials at Guantanamo Bay in Cuba and suggested on Monday Congress was hurting national security by blocking his attempts to move some trials into U.S. civilian courts. Obama also outlined procedures for reviews to be held at least every four years for prisoners held indefinitely without charge or trial.

In early 2009, Obama suspended new trials at the Guantanamo tribunals although tribunals never ceased for previous detainees. 

Obama said in a statement: 

"I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system — including Article III courts (U.S. federal courts) — to ensure that our security and our values are strengthened."

The New York Times also reports that Obama issued an executive order on Monday establishing a process to continue to hold some Guantanamo detainees who have been neither charged, convicted nor designated for transfer but are deemed to pose a threat to U.S. security. He ordered reviews of the determination that some detainees were so dangerous they must be held without charge, with a review for each coming as quickly as possible, but no later than one year from the order.

For the full text of the article, click here

Update: March 8, 2011

John Bellinger writes on today's Lawfare Blog, available here,  that "What appears to be one of the most significant changes in U.S. detention policy announced by the White House yesterday was not included in the new Executive Order but, rather, was buried at the very end of the accompanying Fact Sheet." 

Bellinger writes:

"[T]he Administration announces that it is clarifying the international legal framework applicable to detention in two ways.  First, the White House urges the Senate to approve Additional Protocol II to the Geneva Conventions, which has languished before the Senate since 1987, when President Reagan first transmitted it and urged its rapid approval.  More significant, the Administration states that while it continues to have serious concerns about Additional Protocol I, it nevertheless plans to apply Article 75 of Additional Protocol I, which sets forth certain minimum protections for individuals detained in international armed conflicts who do not qualify for more favorable treatment as Prisoners of War under the Third Convention or as Protected Persons under the Fourth Convention."

Notably, Bellinger writes, it is not clear how much of an impact this will have on current Al-Qaeda detainees:

"Just how dramatic a change this is remains unclear. The Administration states that it will apply Article 75 only to individuals detained “in an international armed conflict.” The Supreme Court in Hamdan, by contrast, concluded that the U.S. conflict with al Qaida is a “non-international armed conflict.” Accordingly, it is not clear whether the Administration disagrees with the Supreme Court’s characterization of the conflict or whether it actually intends not to apply Article 75 to current al Qaida and Taliban detainees. If the Administration does not, in fact, plan to apply Article 75 to current Al Qaida and Taliban detainees (or to other non-state actors captured in non-international armed conflicts), then the White House’s announcement, while still laudable, is considerably less significant than it first appears."

The full post is available here

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