Journalism in the Public Interest

Obama Makes Indefinite Detention and Military Commissions His Own

Prisoners held in indefinite detention at the Guantanamo Bay camp will periodically be reviewed by a board and have a “personal representative” to advocate for them. But the system, similar to what was in effect under the Bush administration, does not bring President Obama closer to shutting Gitmo.


(John Moore/Getty Images)

President Obama yesterday formalized indefinite detention for dozens of men held at Guantanamo Bay and announced that the Pentagon would move ahead with military trials for a handful of other detainees.

In an executive order, which we first reported on in June 2009, the White House created a board to periodically review the dangerousness of prisoners being held without charge or trial. The order says the new process will allow detainees -- some in custody for nearly a decade -- to challenge the government's determination that they pose a threat if released.

While the order is new, most of the ideas it contains are not. This is the third time such a board has been created for nearly the same purpose. Two similar processes to review detainee cases were in place during the Bush administration. Like its predecessors, the Obama administration's review process will operate outside the courts and will be subject to no independent review. Also like the Bush White House, the Obama administration alone will choose all members of the review board and appoint a "personal representative" to advocate on behalf of the detainees.

The major difference is that the White House, sidestepping claims that detainees have a right to counsel, will allow them to hire private attorneys The order states that the government will not pay legal fees. While detainees will have access to some evidence against them, the government will choose what evidence to share. The process is meant to be more adversarial than it had been under the Bush administration. Detainees can submit their own evidence to the review board but will be permitted to call only those witnesses the government determines to be reasonable. It is unclear whether a detainee can dismiss his personal representative or how the lawyer and representative will work together. The order allows a detainee to make his case for release once every three years.

Many Guantanamo detainees now have lawyers and are represented in federal court challenges of their detentions. But the standards for the executive order are different. In court proceedings, the detainees have been challenging the lawfulness of their detentions based on the government's evidence. The separate review, created by the executive order, will rely not just on evidence used in court but on additional factors brought in by the Pentagon, which acts as warden of Guantanamo. Though not spelled out in the order, factors could include a detainee's behavior while in custody.

One hour after the executive order was made public, the White House arranged a conference call for reporters with five senior administration officials to discuss it and other aspects of the administration's detention policies. Not one official spoke for the record, and no specifics about the review process were provided.

Asked about the timing of new military commissions, one official would say only that new charges would be brought within a matter of days or weeks.

All five senior officials rebuffed questions on future prosecutions of the suspected plotters in the 2001 terrorist attacks on the United States, saying they would not discuss individual cases. In November 2009, Attorney General Eric Holder announced that five detainees would be charged in federal court in New York, but that has not happened.

When asked to explain how a decision to move ahead with new trials at Guantanamo was consistent with claims that the administration is closing the facility, the officials said the commissions were consistent with presidential pledges to bring terrorists to justice.

One senior official said that an improved feature of the Obama administration's Periodic Review Boards, or PRBs, was that they would include representatives from different government agencies, as opposed to the Bush administration's review, which was run exclusively by the Defense Department. Under that process, which relied on Administration Review Boards, or ARBs, a detainee's personal representative was also a uniformed member of the U.S. military.

No White House official could say, hours after the order was published, where the personal representative would come from, what the implementing guidelines for the reviews would look like or which agency was charged with drafting the guidelines. A government official who spoke separately confirmed that the representative would come from the military, which is also charged with drafting the review procedures.

The executive order affects only those detainees designated for indefinite detention. The board will also examine whether some cases that had been referred for prosecution are still viable. Currently, 47 of the 172 detainees at Guantanamo have been selected for indefinite detention. The list is secret -- even the detainees do not know they are on it -- and, privately, officials have said the list is likely to grow. About three dozen others could be prosecuted, but it is unclear where.

The executive order will not affect more than 60 detainees who have been cleared for transfer but remain at Guantanamo. Most of those detainees hail from Yemen, a country the Obama White House has said is too unstable to handle transfers.

The order, which was completed last December, aimed to give those facing indefinite detention a possible way out of life in prison without charge or trial. But legislative provisions passed at the end of 2010 will effectively render the review process useless to many of the detainees. Because of the congressional restrictions now in place, a detainee who wins his freedom through the review board may in fact be ineligible for release. Similarly, a detainee who wins his military commission trial or even serves a short sentence could wind up being put on a "releasable" list, but not sent out of Guantanamo.

In a May 2009 speech, Obama first signaled his embrace of indefinite detention and military commission trials. An added review for prisoners held under those conditions was welcome by many human rights activists and experts on detention policy. But there were strong concerns about the White House approach.

Jonathan Hafetz, a law professor at Seton Hall University who has represented a number of detainees, said the review process established in the executive order, "on paper at least, is a significant improvement," over the Bush system. "But if you oppose the type of prolonged, indefinite detention that has come to define Guantanamo (as I do), the order is a mixed blessing at best." Hafetz called the process "Obama's kinder, gentler approach to executive detention."

Benjamin Wittes, of the Brookings Institution, welcomed the added review but worried that the Obama administration was opening itself up to a backlash from congressional Republicans eager for a tougher detention policy.

"This is sound policy of the sort I have been urging for many years. It is also being implemented in exactly the wrong way -- by fiat, rather than by legislation," Wittes said. "I worry that, by doing it this way, the administration will trigger a backlash that will result in much less attractive policy."

Juan Zarate, who served as a counterterrorism adviser to President Bush, noted that the order brings Obama no further toward his stated goal of closing the Guantanamo detention camp. Rather, he said, "it creates a new bureaucratic process that will be challenged, and doesn't help legitimate indefinite detention."

In a statement accompanying the order, Obama said he remained committed to closing the prison, a pledge he made on his first full day in office. That pledge, enshrined in his first executive order, was widely seen as a repudiation of the detention system his predecessor built. But the new order suggests that Obama's original pledge was more about dismantling a facility than a system.

Barry Schmittou

March 8, 2011, 1:24 p.m.

Obama has also made protection of corporate criminals his own.

To see dangerous organized crimes of insurance companies that are Obama campaign contributors please go to

This is so undemocratic. It’s indicative of where we are moving if we don’t stop this completely out of control military industrial complex. It will destroy itself if we don’t rein it in first.

Note to all Obama voters:


“One hour after the executive order was made public, the White House arranged a conference call for reporters with five senior administration officials to discuss it and other aspects of the administration’s detention policies. Not one official spoke for the record, and no specifics about the review process were provided”

“not one official spoke for the record” 

Why is this ok?  If this is this administration’s position.  Say so. Grow a spine and stand up for it.  Stand up and say “some of these people in the facility are a threat to our country, our citizens and our way of life, and given the chance they would harm us, ergo we’re detaining them; and in retrospect, we were also wrong about civil trials, same thing regarding closing the facility”. 

To think that maybe what Boooosh understood that Gitmo was needed, and the military tribunals with their precedence and applicability were appropriate seems just too much for these clowns to admit to.  A free [thinking] press would point this out.  But then again, agreeing to a conference call with no one on the record…  what a bunch of losers.  Ed Murrow would be so proud.

“The order, which was completed last December, aimed to give those facing indefinite detention a possible way out of life in prison without charge or trial. But legislative provisions passed at the end of 2010 will effectively render the review process useless to many of the detainees. Because of the congressional restrictions now in place, a detainee who wins his freedom through the review board may in fact be ineligible for release. Similarly, a detainee who wins his military commission trial or even serves a short sentence could wind up being put on a “releasable” list, but not sent out of Guantanamo.”

um, so we’ll kill them with Red-Tape!

yet, this winner, comes up with this gem:

Jonathan Hafetz, a law professor at Seton Hall University who has represented a number of detainees, said the review process established in the executive order, “on paper at least, is a significant improvement,” over the Bush system.

You bet Jonathan!  We’ll kill them with bureaucracy!!

Thanks to a weak and feeble press, the Obama administration got what they wanted.  No one on point to answer tough questions in public, and someone to say they did better than Booosh.

What a huge waste of time and energy.  And the bigwigs in the board rooms wonder why folks respect traditional news outlets less and less…..

Charlie Sheen

March 8, 2011, 3:13 p.m.

Bush just called… he says, “You’re welcome!”

Any doubts I had about not voting for Mr. Obama in 2012 have been dashed by this latest example of the current administration’s commitment to ensuring the G.O.P. will always get at least as much as, if not more than, it demands. Mr. Obama’s almost pathological inability to resist conceding any and all principles in the face of even the weakest Republican opposition, as well as the the current administration’s positions on such policies as the continuation of interning prisoners at Guantanamo and the forcible “rendition” of others to foreign prisons for probable torture,  the continuation of the ruinous “Bush tax cuts”, as well as a steadfast refusal to correct any of the numerous abuses of power wrought by the previous administration (such as the Patriot Act, the innumerable crimes against humanity and other felonies committed by members of the previous administration, and the list goes on….) lead me to conclude that I, at least, can no longer contemplate voting for or otherwise supporting Mr. Obama now or in the future. At this point, I can scarcely discern any change at all, nor any difference between the Obama administration and any putative Republican adminiostration. In 2012, I will not have abandoned the Democratic Party, it will have abandoned me.

Memo to Obama voters from the Oval Office:

Grab your ankles, gullible dupes, and open wide for “hope” and “change”.


We were duped again.  At some point the responsibility must fall on the people.  I think that time is now.

I don’t think Obama has “sold out”; I think he’s always been in the pockets of his corporate masters. He simply promised whatever he had to in order to win the election, without any intention of actually making good on those promises. Desperate for a change from the hideous Bush administration, people were eager and naive enough to believe him.

I did not vote in the last election because I don’t buy into the illusion that there are actually two political parties in this country and that voting for one or the other will make a difference. It’s the corporations that rule now; politicians left or right simply do their bidding.

Ajax, in most states access to the ballot is based upon the number of votes a party receives.  Rather than refusing to vote if you can hook up with any third party, and indeed any party at all, and vote for them you can increase the odds that the fake parties will receive some real competition.

In looking at this issue, along with other notable failures such as: Obama’s unwillingness to insist on at least humane treatment for Pfc. Bradley Manning, guilty or not we are supposed to be better than that; his unwillingness to confront the Iraqi government about their use of violence on their own citizens; his unwillingness to really confront corruption on Wall Street an the utter failure that was HAMP; and the apparent participation of his office in spinning the news on the Gulf Oil Spill, and I wonder, does he care? 

This is a serious question.  Obama went all out for Health Care he put everything into it.  But when it comes to issues like Guantanamo Bay, not only does he choose to continue keeping the cancer alive rather than taking some painful steps that might at least close it down, but he does so more than two years into his first term. 

When it comes to more urbane problems such as the hundreds of federal judgeships that are not filled, creating case backlogs and raising costs, or the federal agencies that lack directors (e.g. the ATF) it seems even weirder.  If you add to this the extent to which he will alternate between dipping his toe into long-term issues such as education (when he endorsed the firing of every teacher in one district despite the fact that it was not a solution) and his announcement and then somewhat avoidance of “Race to The Top” and I just begin to wonder.

Does he care about these other issues?  Or did he merely go all out on the one thing that did matter to him and is now letting the rest (e.g. Afghanistan) kind of be rolled out by others.  I have no illusions that I will agree with Obama on everything, or perhaps on most things.  But on many issues he either turns a blind eye or moves around in circles (e.g. on the Consumer Protection Bureau) that suggests that he really doesn’t have a dog in the fight or is unwilling to commit the effort to a side.

This is what you all get when voting to give more power to govt. Who do you think is pulling the strings suckers. -Allan

All you Obama supporters will vote for the Intigator In Chief in 2012.  He has you over a barrell.  He know you have no choice.  He’s already started his “I’m the One You’ve Been Waiting for Just ignore my Lies Campaign”.  Thank God there are many of us that don’t fall for pretty words with no meaning!!

For all of you that seem to take great pleasure in pointing out how foolish it was to vote for Obama, I have two words for you:  McCain-Palin.  Instead of counterproductive blabbering about which side is more stupid, how about we all join together and admit that both parties offer no real answers, leadership or long term solutions.  There must be a third party alternative and that is what we should be focusing on.

Virginia Sawaya

March 8, 2011, 5:45 p.m.

This is so disgustingly “unAmerican.”  Obama was a silky-smooth snake-oil salesman who deliberately lied to the American voters, and the world, as well, during his campaign for president.  I was one of the complete idiots who fell for his spiels - but, no more.  It’ll be a cold day in hell if this spineless, incapable man gets my vote, again.
Close Quantanamo, as you promised.

exactly! neither party (mired in the stalemate of bi-partisan poli-tricks) is efficacious, or even awake to the issues begging to be dealt with asap: such as global warming, useless, bloody, and exorbitant wars whom only benefit contractors, and a congress whom are bought and sold by the white collar robber barons getting billion dollar bail-outs….and the only rational response is a revolution: ie a progressive independent third party, whom is not under the thrall of corporate thieves, special interests, media oligarchs, and the twisted allegiances/ ideologies of this antiquated bi-partisan system. we need a third party

Obamaisa Socialist

March 8, 2011, 7:17 p.m.

The view is quite different from the Oval Office.  The Daily Threat Assessment is sobering.  Too bad for the anti-American ultra-liberals that Obama truely does have a smidgen of common sense.


March 8, 2011, 7:34 p.m.

Goodbye, U.S. Constitution.

@Obamaisa Socialist

Oh so you read the daily threat assessment? That’s weird b/c I thought it was classified. My best guess is that, after 8 years of conditioning for a paranoid administration hell bent on getting the intel that would reinforce its biases, the threat assessment coming from the intel agencies is quite scary. Their whole existence relies on that fact. Fait accompli.

Never mind the question of whether the reports are reliable. Never mind the terrible track record the intel agencies have with understanding non-state actors. Never mind that Secretary Gates and the rest of the CIA was so wrapped up in russophobic paranoia in the 80s that they failed to predict the collapse of the Soviet Union, despite being “specialists” on the subject.

What’s the constitution worth when death is on the line? Lock up those tortured terrorists. Throw away the key. Shove the constitution down their throats until they choke. Owned.

Barry Schmittou

March 9, 2011, 8:49 a.m.

To Obamaisa Socialist,

Read all the evidence of doctors’ paid by insurance companies ignoring life threatening conditions and identical crimes committed in 5 different types of insurance seen at

See how the OBAMA and BUSH administrations have protected these crimes.

I have received letters from DOL Director of Participaant Response Sharon Watson in Washington and they will not lift one finger to stop doctors’ who ignore Multiple Sclerosis, brain lesions, cancer, and a foot a new mother broke in 5 places, and much more !!

The specifics for these cases are seen at

Obama has no common sense ! Like Bush he is a protector of psychopathic corporate criminals who just happen to make huge campaign contributions and spend millions each year lobbying !!

There is so much evidence of evil I believe God is the only one who can help us now


March 9, 2011, 3:04 p.m.

The administration’s reasoning is outrageously circular.

They torture a man into a confession, which as everyone knows is not reliable because people will say anything to stop the torture.

Then they are told that the confesion is tainted because it was obtained under torture.

Finally, they decide that the person must be detained indefinitely because the tainted evidence cannot be used to try the person.

Thus, they are keeping someone locked up because they tortured him.

Is there any sense in this? There certainly is no justice.

James B Storer

March 9, 2011, 9:23 p.m.

Comments to this report are more in number than I would have thought.  Also, a very high percentage are emotionally charged party bashing.  I have never been overly fond of either of the two main parties, although I happen to work diligently for the Democrats because I philosophically dislike the other party more.  In comments to these pro-publica comments program I have carefully stayed away from reports or a comment tenor that seem openly based purely on partisan politics.  I am inclined to send a comment here, however, because many preceding comments are nothing but politically charged emotionalism.
  I have concluded the last few days that I must change my mundane traditional attitude toward politics and try a different way of thinking. First, I solemnly believe that the gravest threat to our country, in the whole history of our nation, mind you, is the encroachment of the ideology (truly unconstitutional) of Corporatism and the steadily increasing power given to the concept of Corporate Personhood (truly a logically absurd idea).
  Applying this line of thinking, the two political parties are merely props like store-fronts and window treatments, designed by The Corporation.  I exchanged a few comments in another report with a gentleman who believes that the one and only hope for getting back control of our nation through the election process is for all third party and independents to cease squabbling amongst themselves, .and form a single third party. I agree, but even this seems an almost impossible plan to execute.
  A step we can each take now, however, is to drop this incessant criticism of the party we do not like.  Instead, use that energy to strengthen your own party, whichever one you belong to, and get it on the right track.  We gain little by castigating your opponent, but we can make lots of progress by helping to straighten up our own party.
—-Skartishu,  Granby MO


March 10, 2011, 8:51 a.m.

@James B Storer

I couldn’t agree more that it’s a waste of time to keep beating up on the bad guys. The most important thing is to concentrate on building something to defeat them.

If the Right could form a Tea Party I see no reason why a working class coalition led by the unions could not form a Labor Party. Overcoming the inertia of the union leadership is a major obstacle, but if we give up before even making the effort we’re just resigning ourselves to another period of economic misery.

Individual Americans, you have now political choices any more because you have no representations. Take your choice between the dirty rotten pigs: Republican(facist) party or Democrat(socialists) party. What this present administration represents is a marriage between the coroporate nation and the socialist nation, hense the Nation State! Can’t you see? Both parties are in this facist take over togather! Do you see Obama standing with the individual in Wisconsin who is protesting the facist attack on the check in placed the the majority population? No! The so called Democratic Party oposition to this is pure theatrics! They want this Facist takeover just as much as the Republican Facists themselves! If any reader of this dares to question the validity of this report, then let me verify my position by asking this sole question: Why has anyone, espeacially those within the democratic party not dared to ask the Governor of Wisconsin what the new check is that is going to be in place to replace the Union? No one has dared not ask this because there is going to be NO CHECK! The Facists want absolute authority, and the Democratic party is right in there with them in it! I am here to tell you as well that once this authority becomes absolute, you havn’t seen the end of it America. All of America shall be drastically affected, espeacially you in the Southland! How does two dollars an hour sound for profassional work! How does a thousand dollars a month and 60+ hours a week sound..and no benefits sound to you? You don’t like that, do you? Well look back at your recent 70 yr history! Had it not been for the Unions in the Northern Half of the country, that is what would(and will be) shoved down your throats!!!  Like slave labor camps? That will come as well once these Facist Pigs take control! You the people are NOTHING but an expendable rescource to these people seizing absoulute power!...........but the good news is that ALL OF YOU TOGATHER can do something if you act NOW in unison. Act now in mass protest!

This article is part of an ongoing investigation:

The Detention Dilemma

The government remains uncertain what to do with its prisoners at Guantanamo Bay.

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