(snip)
A small number would be confined indefinitely without charge or trial, but the great majority would have their status resolved by civilian or military trials or outright release. Two years later, there is no clarity on any of those tracks. No formal charges have been brought against the three dozen men designated for eventual trial. Others long cleared to return home languish in custody in part because of the administration's self-imposed moratorium on transfers to Yemen.
In effect, detainees face indefinite prosecution, and indefinite release -- concepts unknown before Obama's presidency. In the interim, the number of Guantanamo inmates designated for open-ended detention has grown while the number who await trial has declined.
An executive order would deal in part with some of those cases. Currently, the draft order would provide a full review process for the 48 detainees in the indefinite detention category -- suspects the administration will not charge nor free. Those detainees would have access to lawyers and could challenge their detention and some of the evidence against them. The order also envisions a review of potential prosecution cases to determine which are still viable and in what setting. But the detainees in that category and those in all other categories have no way to challenge those determinations.
"If the executive order only applies to the 48 detainees that the administration says they are detaining indefinitely, then that is a failure to acknowledge reality," said Laura Pitter, a lawyer with Human Rights Watch. "There are 174 detainees still at Guantanamo and whether the administration says they will be tried, detained or released, they are in fact indefinitely detained and have been for a long time." Human Rights Watch, along with other civil rights groups, opposes indefinite detention. "The administration needs to either prosecute them or release them," Pitter said.
The bill makes both of those options more difficult and complicates the aims of the executive order.
(snip)
The American Bar Association issued a report in 2006 that called signing statements "contrary to the rule of law and our constitutional separation of powers." The report was signed by a number of legal scholars including Harold Koh, who was then dean at Yale Law School and is today the top lawyer at the State Department and one of several advisers involved in the administration's Guantanamo policy.
Further, I was never convinced signing statements were constitutional under bush (and previous presidents), and am not sure they are under Obama.