While in Congress, Senator Obama co-sponsored and voted for legislation to grant habeas corpus rights to detainees at Guantanamo Bay. During the 2008 campaign, Senator Obama stated that the lack of Habeas Corpus was un-American, unnecessary, fuel for extremism, and a danger to our troops. Senator Obama praised the supreme court ruling in Boudemiene v Bush which granted habeas corpus to the detainees, stating that it was an important step toward reestablishing our credibility as a nation committed to the rule of law. One month after assuming office, the Obama administration was asked if it would grant the same rights to detainees in Iraq and Afghanistan or continue to oppose a law suit filed by the detainees there. In a two sentence statement, the Obama DOJ stated that it would continue the Bush Administration policy.
During the campaign, Senator Obama stated that the worst breaches of civil liberties were caused not by the PATRIOT Act, but rather through executive order by President Bush. He cited a number of policies that he would remove "with the stroke of a pen." He also noted that the Act did accomplish a number of things that were needed, such as the ability to monitor cell phone activities. After assuming office, he signed legislation to extend key provisions of the PATRIOT Act.
Through the 2008 campaign, Senator Obama was adamant about the need to shut down Guantanamo Bay. He stated that the facility was a lightening rod for recruitment of muslim extremists and that the Bush administration had used a culture of fear to maintain such a place. Two days after assuming office, President Obama signed an executive order stating that Guantanamo Bay must be closed within a year and the detainees would be dealt with appropriately. Since that time, President Obama has not been able to find countries to take the detainees and has been unable to close the facility almost a year after the deadline.
During the 2008 campaign, Senator Obama repeated stated that he would end torture. Days after taking office, President Obama issued an executive order stating that only field manual approved techniques would be used to obtain information. He has not applied those criteria to Bagram Air Force Base or other bases in Iraq or Afghanistan.
In May of 2009, President Obama noted that there were five classes of prisoners at Guantanamo Bay, one of these classes were of people who would not be put on trial of any kind and must be held indefinitely. That same month, President Obama authorized military commissions to continue with the conditions that no information obtained through torture be allowed, that detainees have greater latitude to chose their attorney, protections for those who refuse to testify, and removing the requirement that hearsay be proven false before discounted. In March of 2011, President Obama issued an executive order allowing new military tribunals to be started and initiating a policy of periodic review to determine the status of detainees to ensure they are in the proper class of detainee.
Timeline of Events Concerning Homeland Security
The timeline below shows the progression of events listed below.
September 2006 - Senator Obama speaks on the Senate floor about the need to restore Habeas Corpus
It is un-American
It is tyrannical
It is unnecessary to fight terrorism
It is a recruiting tool
It endangers US troops
March 20, 2007 - Senator Obama co-sponsors the Habeas Corpus Restoration Act of 2007
August 3, 2007 - Senator Obama co-sponsors the Restoring the Constitution Act of 2007
September 19, 2007 - Senator Obama votes in favor of legislation to restore Habeas Corpus
December 2007 - Senator Obama accuses the Bush administration of creating a culture of fear
June 2008 - Senator Obama supports Boudemiene v Bush decision allowing Habeas Corpus to detainees
August 2008 - Senator Obama states that PATRIOT Act not that bad, but signing statements caused problems
May-Oct 2008 - Senator Obama campaigns on restoring Habeas Corpus and closing Guantanamo
November 2008 - Senator Obama's campaign statements note that he willrn
End the Use of Torture and Extreme Rendition
Close the Guantanamo Bay Detention Center
Revise the PATRIOT Act
Eliminate Warrantless Wiretaps
Restore Habeas Corpus
January 22, 2009 - President Obama issues 3 Executive Ordersrn
Closing Guantanamo Bay in 1 year
Ensuring legal interrogation techniques
Review of detention policies
February 2009 - President Obama continues Bush Policy of stating that detainees have no right to legal system
May 15, 2009 - President Obama allow military commissions to continue with 5 changesrn
statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial
the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability
the accused will have greater latitude in selecting their counsel
basic protections will be provided for those who refuse to testify
military commission judges may establish the jurisdiction of their own courts
May 21, 2009 - President Obama gives a National Security Speech where he outlines the 5 types of prisonersrn
Prisoners who will be tried in the federal courts
Prisoners who will be tried through military commissions;
Prisoners who have been ordered released by the federal courts;
Prisoners who will be turned over to other countries;
Prisoners who cannot be tried in court or through commissions but who will not be released
November 18, 2009 - Obama administration announces that there will be no civilian trial for KSM
March 7, 2011 - President Obama issues executive order allowing new military commissions to be started and initiating a periodic review program where each detainees status is reviewed every year
Floor Speech - Habeas Corpus for Guantanamo Detainees
In late September of 2006, Senator Obama spoke on the Senate floor about the need for Habeas Corpus and the ability of someone detained to question his imprisonment. Senator Obama was arguing in favor of an amendment to the Military Commissions Act that would have restored habeas corpus rights to Guantanamo detainees. As noted in the cited article, Senator Obama states that taking people and placing them in Guantanamo without habeas corpus is (a) un-American; (b) tyrannical; (c) unnecessary to fight Terrorism; (d) a potent means for stoking anti-Americanism and fueling Terrorism; (e) a means of endangering captured American troops, Americans traveling abroad and Americans generally; and (f) a violent betrayal of core, centuries-old Western principles of justice.
Prior to these statements, Senator Obama specifically mentioned Khalid Sheikh Mohammed (KSM) and asserted that the bill he was supporting would receive a full military trial.
You'll hear opponents of this amendment say that it will give all kinds of rights to terrorist masterminds like Khalid Sheikh Mohammed. I wanna repeat, that is not true. The irony of the underlying bill as it is written is that someone like KSM is gonna get, basically a full military trial with all the bells and whistles. He's gonna get counsel, he's gonna get to present evidence, he's gonna be able to rebut the government's case. Because the feeling is that he is guilty of a war crime and to do otherwise might violate some of our agreements under the Geneva Convention.
The bottom line is this: Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government's case and has no way of proving his innocence.
I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary. I do not want to hear that this is a new world and we face a new kind of enemy. I know that. . . . But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.
This is not just an entirely fictional scenario, by the way. We have already had reports by the CIA and various generals over the last few years saying that many of the detainees at Guantanamo should not have been there. As one U.S. commander of Guantanamo told the Wall Street Journal:
"Sometimes, we just didn't get the right folks."
We all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria--through a rendition agreement--tortured, only to find out later it was all a case of mistaken identity and poor information. . . .
This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person. . . .
But what is avoidable is refusing to ever allow our legal system to correct these mistakes. By giving suspects a chance--even one chance--to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .
Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.
In Sunday's New York Times, it was reported that previous drafts of the recently released National Intelligence Estimate, a report of 16 different Government intelligence agencies, describe "actions by the United States Government that were determined to have stoked the jihad movement, like the indefinite detention of prisoners at Guantanamo Bay."
This is not just unhelpful in our fight against terror, it is unnecessary. We don't need to imprison innocent people to win this war. For people who are guilty, we have the procedures in place to lock them up. That is who we are as a people. We do things right, and we do things fair.
Two days ago, every Member of this body received a letter, signed by 35 U.S. diplomats, many of whom served under Republican Presidents. They urged us to reconsider eliminating the rights of habeas corpus from this bill, saying:
"To deny habeas corpus to our detainees can be seen as a prescription for how the captured members of our own military, diplomatic, and NGO personnel stationed abroad may be treated. ..... The Congress has every duty to insure their protection, and to avoid anything which will be taken as a justification, even by the most disturbed minds, that arbitrary arrest is the acceptable norm of the day in the relations between nations, and that judicial inquiry is an antique, trivial and dispensable luxury."
The world is watching what we do today in America. They will know what we do here today, and they will treat all of us accordingly in the future--our soldiers, our diplomats, our journalists, anybody who travels beyond these borders. I hope we remember this as we go forward. I sincerely hope we can protect what has been called the "great writ" -- a writ that has been in place in the Anglo-American legal system for over 700 years.
Mr. President, this should not be a difficult vote. I hope we pass this amendment because I think it is the only way to make sure this underlying bill preserves all the great traditions of our legal system and our way of life.
The Culture of Fear
In a December 2007 google interview, Senator Obama states that the Bush administration has used a culture of fear to manipulate the nation. He states that Guantanamo is "easy" and that is should simply be shut down, and that habeas corpus should be restored.
Boston Globe Interview
In December of 2007, Senator Obama was interviewed by the Boston Globe and asked about habeas corpus rights, detention, and surveillance.
1. Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?
The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes.
5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?
No. I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.
6. Does executive privilege cover testimony or documents about decision-making within the executive branch not involving confidential advice communicated to the president himself?
With respect to the “core” of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the President and the White House.
7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president's authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?
No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.
8. Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard international human rights treaties that the US Senate has ratified?
It is illegal and unwise for the President to disregard international human rights treaties that have been ratified by the United States Senate, including and especially the Geneva Conventions. The Commander-in-Chief power does not allow the President to defy those treaties.
9. Do you agree or disagree with the statement made by former Attorney General Gonzales in January 2007 that nothing in the Constitution confers an affirmative right to habeas corpus, separate from any statutory habeas rights Congress might grant or take away?
Disagree strongly.
10. Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea?
First and foremost, I agree with the Supreme Court's several decisions rejecting the extreme arguments of the Bush Administration, most importantly in the Hamdi and Hamdan cases. I also reject the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments. In my view, torture is unconstitutional, and certain enhanced interrogation techniques like “waterboarding” clearly constitute torture. And as noted, I reject the use of signing statements to make extreme and implausible claims of presidential authority.
Some further points:
The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.
Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.
The violation of international treaties that have been ratified by the Senate, specifically the Geneva Conventions, was illegal (as the Supreme Court held) and a bad idea.
The creation of military commissions, without congressional authorization, was unlawful (as the Supreme Court held) and a bad idea.
I believe the Administration’s use of executive authority to over-classify information is a bad idea. We need to restore the balance between the necessarily secret and the necessity of openness in our democracy – which is why I have called for a National Declassification Center.
Reaction to Boudemiene v Bush
In June of 2008, the Supreme Court ruled that those detained at Guantanamo Bay were allowed access to the federal court system. This decision essentially granted the detainees habeas corpus rights. While Senator McCain was highly critical of the ruling, Senator Obama applauded the decision and said the following:
Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.
Campaign Events - Guantanamo and Habeas Corpus
In numerous campaign events during the 2008 Presidential campaign, Senator Obama stated that he would close Guantanamo Bay and restore the rights of Habeas Corpus to the prisoners there. He noted the importance of the writ of habeas corpus to ensuring that the person being held was the person in question.
2008 Campaign Event - PATRIOT Act
In August of 2008, Senator Obama was speaking at a campaign event and was asked why he supported the reauthorization of the PATRIOT Act when it had been proven that the reasons for going to war were invalid (as per the person's question).
It's not actually true that the PATRIOT Act was the worst (breach of civil liberties), most of the problems that we have had concerning civil liberties were not done through the PATRIOT Act, they were done through executive order by President George W Bush. That's why the first thing I will do as President is call in my Attorney General and have he or she review every executive order to determine which of those have undermined civil liberties, which are unconstitutional, and I will reverse them with the stroke of a pen. That's actually how the worst abuses have occurred. That's what happened with Guantanamo, that's what happened with warrantless wire-taps, that's what happened with the suspension of habeas corpus, that's what's happened in terms of the rounding up of Americans of Muslim extraction. Those weren't done through the PATRIOT Act, those were all done separately.
The first PATRIOT Act, I wasn't there so I didn't vote for that. the second one, I actually worked with Russ Feingold who was one of the people who opposed it, to try to amend it to deal with some of its excesses.
There were some provisions in the PATRIOT Act that actually did need ... did address changes that needed to take place, and let me give you a specific example. Prior to the PATRIOT Act, you could not wire-tap a phone that wasn't land based. Now think about it. Nobody uses a land based phone anymore. Certainly people who might be doing ... engaging in terrorism aren't going to be using an old dial up phone. So, it made sense then to change that law, and there were some other provisions that made sense. There were a number of provisions that went way overboard, including, for example, going through library records. We instituted a series of amendments that changed some of the worst excesses of the previous law. Some of the other amendments were blocked by the administration and the Republican congress.
But I want everyone to understand, I taught constitutional law for ten years, I take the constitution very seriously. The biggest problems we're facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through congress at all and that's what I intend to reverse when I am President of the United States of America.
Primary Debate
During one of the primary debates with Senator Clinton, Senator Obama pledged to shut down Guantanamo Bay and restore Habeus Corpus rights.
2008 Campaign Website Statements
4. RESTORING OUR VALUES
“We cannot win a war unless we maintain the high ground and keep the people on our side. But because the administration decided to take the low road, our troops have more enemies. Because the administration cast aside international norms that reflect American values, we are less able to advance our values. When I am president. . . . we will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.” Barack Obama would restore America’s standing, reputation and authority in the world.
As president, Obama will:
• End the Use of Torture and Extreme Rendition. Military and intelligence experts agree that torture is not an effective means of interrogation, and our using it threatens American troops serving abroad. From both a moral standpoint and a practical standpoint, torture is wrong. Barack Obama will end the use torture without exception. He also will eliminate the practice of extreme rendition, where we outsource our torture to other countries.
• Close the Guantanamo Bay Detention Center. Guantanamo has become a recruiting tool for our enemies. The legal framework behind Guantanamo has failed completely, resulting in only one conviction. President Bush’s own Secretary of Defense, Robert Gates, wants to close it. Former Secretary of State Colin Powell, wants to close it. The first step to reclaiming America’s standing in the world has to Paid for by Obama for America be closing this facility. As president, Barack Obama will close the detention facility at Guantanamo. He will reject the Military Commissions Act, which allowed the U.S. to circumvent Geneva Conventions in the handling of detainees. He will develop a fair and thorough process based on the Uniform Code of Military Justice to distinguish between those prisoners who should be prosecuted for their crimes, those who can’t be prosecuted but who can be held in a manner consistent with the laws of war, and those who should be released or transferred to their home countries.
• Revise the PATRIOT Act. Barack Obama believes that we must provide law enforcement the tools it needs to investigate, disrupt, and capture terrorists, but he also believes we need real oversight to avoid jeopardizing the rights and ideals of all Americans. There is no reason we cannot fight terrorism while maintaining our civil liberties. Unfortunately, the current administration has abused the powers given to it by the PATRIOT Act. A March 2007 Justice Department audit found the FBI improperly and, in some cases, illegally used the PATRIOT Act to secretly obtain personal information about American citizens. As president, Barack Obama would revisit the PATRIOT Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision.
• Eliminate Warrantless Wiretaps. Barack Obama opposed the Bush Administration’s initial policy on warrantless wiretaps because it crossed the line between protecting our national security and eroding the civil liberties of American citizens. As president, Obama would update the Foreign Intelligence Surveillance Act to provide greater oversight and accountability to the congressional intelligence committees to prevent future threats to the rule of law.
• Restore Habeas Corpus. The right of habeas corpus allows prisoners to ask a court to determine whether they are being lawfully imprisoned. Recently, this right has been denied to those deemed enemy combatants. Barack Obama strongly supports bipartisan efforts to restore habeas rights. He firmly believes that those who pose a danger to this country should be swiftly tried and brought to justice, but those who do not should have sufficient due process to ensure that we are not wrongfully denying them their liberty.
60 Minutes Interview
In an interview with 60 minutes just days after winning the election, President-Elect Obama stated that he would close down Guantanamo Bay and end torture through an executive order.
Executive Orders
On January 22, 2009, President Obama signed three executive orders. One of these orders called for the closure of the facility at Guantanamo Bay and a review of all detainees there. The second order called for a review of all the detention policies in place. The third order ensured that only lawful interrogation tactics were used.
In particular, subsection C of section 2 of the first executive order stated that all those in the detention facilities had a right to habeas corpus. Section 3 of the order called for the base at Guantanamo Bay to be closed within a year.
Section 2 Findings: (c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.
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.
President Obama spoke at a press conference about these three orders and noted that the facility would be closed, and that he was in the process of determining the best method of dealing with the prisoners there.
This morning, I signed three executive orders. First, I can say without exception or equivocation that the United States will not torture. Second, we will close the Guantanamo Bay detention camp and determine how to deal with those who have been held there. And third, we will immediately undertake a comprehensive review to determine how to hold and try terrorism suspects to best protect our nation and the rule of law.
On January 22, 2009 the White House issued a press statement noting the signing of the three executive orders and one additional memo.
Executive Order regarding Guantanamo Bay detainees
Executive Order requires closure of the Guantanamo detention center no later than one year from the date of the Order. Closure of the facility is the ultimate goal but not the first step. The Order establishes a review process with the goal of disposing of the detainees before closing the facility.
The Order sets up an immediate review to determine whether it is possible to transfer detainees to third countries, consistent with national security. If transfer is not approved, a second review will determine whether prosecution is possible and in what forum. The preference is for prosecution in Article III courts or under the Uniform Code of Military Justice (UCMJ), but military commissions, perhaps with revised authorities, would remain an option. If there are detainees who cannot be transferred or prosecuted, the review will examine the lawful options for dealing with them. The Attorney General will coordinate the review and the Secretaries of Defense, State, and Homeland Security as well as the DNI and the Chairman of the Joint Chiefs of Staff will participate.
The Executive Order directs the Secretary of State to seek international cooperation aimed at achieving the transfers of detainees.
The Order directs the Secretary of Defense to halt military commission proceedings pending the results of the review.
Finally, the Executive Order requires that conditions of confinement at Guantanamo, until its closure, comply with Common Article 3 of the Geneva Conventions and all other applicable laws.
Executive Order regarding Detainee Policy
Executive Order creates a Special Task Force, co-chaired by the Attorney General and the Secretary of Defense, to conduct a review of detainee policy going forward. The group will consider policy options for apprehension, detention, trial, transfer, or release of detainees. Other Task Force participants include the Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, the Director of the Central Intelligence Agency, and the Chairman of the Joint Chiefs of Staff. The Special Task Force must submit its report to the President within 180 days.
Executive Order regarding Interrogation
Executive Order revokes Executive Order 13440 that interpreted Common Article 3 of the Geneva Conventions. It requires that all interrogations of detainees in armed conflict, by any government agency, follow the Army Field Manual interrogation guidelines. The Order also prohibits reliance on any Department of Justice or other legal advice concerning interrogation that was issued between September 11, 2001 and January 20, 2009.
The Order requires all departments and agencies to provide the ICRC access to detainees in a manner consistent with Department of Defense regulations and practice. It also orders the CIA to close all existing detention facilities and prohibits it from operating detention facilities in the future.
Finally, the Order creates a Special Task Force with two missions. The Task Force will conduct a review of the Army Field Manual interrogation guidelines to determine whether different or additional guidance is necessary for the CIA. It will also look at rendition and other policies for transferring individuals to third countries to be sure that our policies and practices comply with all obligations and are sufficient to ensure that individuals do not face torture and cruel treatment if transferred. This Task Force will be led by the Attorney General with the Secretary of Defense and the Director of National Intelligence as co-Vice Chairs.
Presidential Memorandum on Review of the Detention of al-Marri
The President instructed the Attorney General, the Secretaries of Defense, State, and Homeland Security, and the Director of National Intelligence to conduct a review of the status of the detainee Ali Saleh Kahlah al-Marri who is currently held at the Naval Brig in Charleston, South Carolina. This will ensure the same kind of legal and factual review is undertaken of the al-Marri case that is being undertaken of the Guantanamo cases.
Bagram Air Force Base - Agreement with Bush Administration
As noted, in the summer of 2008 the Supreme Court ruled that detainees at Guatanamo Bay were due habeas corpus rights. Three months after the Supreme Court's ruling, four Afghan citizens being detained at Bagram tried to challenge their detentions in U.S. District Court in Washington. Their petition was filed by relatives on their behalf since they had no way of getting access to the legal system. The military has determined that all the detainees at Bagram are "enemy combatants," and the Bush administration said in a response to the petition last year that the enemy combatant status of the Bagram detainees is reviewed every six months, taking into consideration classified intelligence and testimony from those involved in their capture and interrogation.
After Barack Obama took office, a federal judge in Washington gave the new administration a month to decide whether it wanted to stand by Bush's legal argument. In a two sentence response, the Obama administration sided with the Bush administration in declaring that those detained in Iraq and Afghanistan had no right to habeas corpus.
Having considered the matter, the government adheres to its previously articulated position.
Restart of Military Commissions
On May 15, 2009 President Obama issued a statement noting that military commissions were to be restored as a legitimate forum for prosecution. The statement noted that the military commissions that are reopened will be done with new rules in place.
statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial
the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability
the accused will have greater latitude in selecting their counsel
basic protections will be provided for those who refuse to testify
military commission judges may establish the jurisdiction of their own courts
THE WHITE HOUSE Office of the Press Secretary _________________________________________________ FOR IMMEDIATE RELEASE May 15, 2009
Statement of President Barack Obama on Military Commissions
Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered. In the past, I have supported the use of military commissions as one avenue to try detainees, in addition to prosecution in Article III courts. In 2006, I voted in favor of the use of military commissions. But I objected strongly to the Military Commissions Act that was drafted by the Bush Administration and passed by Congress because it failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees that we were holding at the time. Indeed, the system of Military Commissions at Guantanamo Bay had only succeeded in prosecuting three suspected terrorists in more than seven years.
Today, the Department of Defense will be seeking additional continuances in several pending military commission proceedings. We will seek more time to allow us time to reform the military commission process. The Secretary of Defense will notify the Congress of several changes to the rules governing the commissions. The rule changes will ensure that: First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify. And fifth, military commission judges may establish the jurisdiction of their own courts.
These reforms will begin to restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law. In addition, we will work with the Congress on additional reforms that will permit commissions to prosecute terrorists effectively and be an avenue, along with federal prosecutions in Article III courts, for administering justice. This is the best way to protect our country, while upholding our deeply held values.
National Security Speech
On May 21, 2009 President Obama spoke at the National Archives about national security issues and the detention facility at Guantanamo Bay. In part of this speech, the President stated that the detention facility had made the US weaker by lowering our moral authority and reducing our influence overseas.
There is also no question that Guantanamo set back the moral authority that is America's strongest currency in the world. Instead of building a durable framework for the struggle against al Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law. In fact, part of the rationale for establishing Guantanamo in the first place was the misplaced notion that a prison there would be beyond the law -- a proposition that the Supreme Court soundly rejected. Meanwhile, instead of serving as a tool to counter terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.
So the record is clear: Rather than keeping us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it. That's why I argued that it should be closed throughout my campaign, and that is why I ordered it closed within one year.
In that same speech, President Obama noted that no one has ever escaped from one of the federal supermax prisons and that these facilities already house the most dangerous and violent criminals in the society. He noted the previous cases handled by the civilian court system.
Now, let me begin by disposing of one argument as plainly as I can: We are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders -- namely, highly secure prisons that ensure the public safety.
As we make these decisions, bear in mind the following face: Nobody has ever escaped from one of our federal, supermax prisons, which hold hundreds of convicted terrorists. As Republican Lindsey Graham said, the idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational.
...
Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists. The record makes that clear. Ramzi Yousef tried to blow up the World Trade Center. He was convicted in our courts and is serving a life sentence in U.S. prisons. Zacarias Moussaoui has been identified as the 20th 9/11 hijacker. He was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.
Recently, we prosecuted and received a guilty plea from a detainee, al-Marri, in federal court after years of legal confusion. We're preparing to transfer another detainee to the Southern District Court of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania -- bombings that killed over 200 people. Preventing this detainee from coming to our shores would prevent his trial and conviction. And after over a decade, it is time to finally see that justice is served, and that is what we intend to do.
Also in the speech, the President established 5 categories that prisoners at Guantanamo Bay would fall into when the determination was to be made as to their futures.
Prisoners who will be tried in the federal courts;
Prisoners who will be tried through military commissions;rn
with modifications such as removing the burden to prove that hearsay is unreliable
No evidence obtained through interrogation would be allowed
Prisoners who have been ordered released by the federal courts;
Prisoners who will be turned over to other countries;
Prisoners who cannot be tried in court or through commissions but who will not be released.
This final classification of inmates are Guantanamo Bay represent the biggest problem that he has with honoring his promises to restore habeas corpus rights. He notes that he cannot simply release them, but that there may not be enough evidence to hold the men indefinitely. He states that any prolonged detention must be done in a legal framework.
Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
Civilian Trial for KSM
On November 18, 2009 Attorney General Eric Holder announced that civilian federal trials would be held for KSM and four other defendants. He outlined the items that were considered when deciding which detainees would be tried in civilian courts and which were tried in military tribunals.
Reauthorization of the PATRIOT Act
In February of 2010, President Obama signed an extension of the PATRIOT Act. The extension continued three key aspects of the PATRIOT Act:
Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
Allow court-approved seizure of records and property in anti-terrorism operations.
Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group
Resumption of Military Commissions
On March 7, 2011 President Obama issued an executive order noting that he was allowing new charges to be filed in military tribunals. The President also authorized a policy of periodically reviewing detainees and determining where they fit in the categories established in his National Security Speech.
The White House
Office of the Press Secretary
For Immediate Release March 07, 2011
EXECUTIVE ORDER
PERIODIC REVIEW OF INDIVIDUALS DETAINED AT GUANTÁNAMO BAY NAVAL STATION PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force of September 2001 (AUMF), Public Law 107-40, and in order to ensure that military detention of individuals now held at the U.S. Naval Station, Guantánamo Bay, Cuba (Guantánamo), who were subject to the interagency review under section 4 of Executive Order 13492 of January 22, 2009, continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Section 1. Scope and Purpose. (a) The periodic review described in section 3 of this order applies only to those detainees held at Guantánamo on the date of this order, whom the interagency review established by Executive Order 13492 has (i) designated for continued law of war detention; or (ii) referred for prosecution, except for those detainees against whom charges are pending or a judgment of conviction has been entered.
(b) This order is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch's continued, discretionary exercise of existing detention authority in individual cases. It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law. Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.
(c) In the event detainees covered by this order are transferred from Guantánamo to another U.S. detention facility where they remain in law of war detention, this order shall continue to apply to them.
Sec. 2. Standard for Continued Detention. Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.
Sec. 3. Periodic Review. The Secretary of Defense shall coordinate a process of periodic review of continued law of war detention for each detainee described in section 1(a) of this order. In consultation with the Attorney General, the Secretary of Defense shall issue implementing guidelines governing the process, consistent with the following requirements:
(a) Initial Review. For each detainee, an initial review shall commence as soon as possible but no later than 1 year from the date of this order. The initial review will consist of a hearing before a Periodic Review Board (PRB). The review and hearing shall follow a process that includes the following requirements:
(1) Each detainee shall be provided, in writing and in a language the detainee understands, with advance notice of the PRB review and an unclassified summary of the factors and information the PRB will consider in evaluating whether the detainee meets the standard set forth in section 2 of this order. The written summary shall be sufficiently comprehensive to provide adequate notice to the detainee of the reasons for continued detention.
(2) The detainee shall be assisted in proceedings before the PRB by a Government-provided personal representative (representative) who possesses the security clearances necessary for access to the information described in subsection (a)(4) of this section. The representative shall advocate on behalf of the detainee before the PRB and shall be responsible for challenging the Government's information and introducing information on behalf of the detainee. In addition to the representative, the detainee may be assisted in proceedings before the PRB by private counsel, at no expense to the Government.
(3) The detainee shall be permitted to (i) present to the PRB a written or oral statement; (ii) introduce relevant information, including written declarations; (iii) answer any questions posed by the PRB; and (iv) call witnesses who are reasonably available and willing to provide information that is relevant and material to the standard set forth in section 2 of this order.
(4) The Secretary of Defense, in coordination with other relevant Government agencies, shall compile and provide to the PRB all information in the detainee disposition recommendations produced by the Task Force established under Executive Order 13492 that is relevant to the determination whether the standard in section 2 of this order has been met and on which the Government seeks to rely for that determination. In addition, the Secretary of Defense, in coordination with other relevant Government agencies, shall compile any additional information relevant to that determination, and on which the Government seeks to rely for that determination, that has become available since the conclusion of the Executive Order 13492 review. All mitigating information relevant to that determination must be provided to the PRB.
(5) The information provided in subsection (a)(4) of this section shall be provided to the detainee's representative. In exceptional circumstances where it is necessary to protect national security, including intelligence sources and methods, the PRB may determine that the representative must receive a sufficient substitute or summary, rather than the underlying information. If the detainee is represented by private counsel, the information provided in subsection (a)(4) of this section shall be provided to such counsel unless the Government determines that the need to protect national security, including intelligence sources and methods, or law enforcement or privilege concerns, requires the Government to provide counsel with a sufficient substitute or summary of the information. A sufficient substitute or summary must provide a meaningful opportunity to assist the detainee during the review process.
(6) The PRB shall conduct a hearing to consider the information described in subsection (a)(4) of this section, and other relevant information provided by the detainee or the detainee's representative or counsel, to determine whether the standard in section 2 of this order is met. The PRB shall consider the reliability of any information provided to it in making its determination.
(7) The PRB shall make a prompt determination, by consensus and in writing, as to whether the detainee's continued detention is warranted under the standard in section 2 of this order. If the PRB determines that the standard is not met, the PRB shall also recommend any conditions that relate to the detainee's transfer. The PRB shall provide a written summary of any final determination in unclassified form to the detainee, in a language the detainee understands, within 30 days of the determination when practicable.
(8) The Secretary of Defense shall establish a secretariat to administer the PRB review and hearing process. The Director of National Intelligence shall assist in preparing the unclassified notice and the substitutes or summaries described above. Other executive departments and agencies shall assist in the process of providing the PRB with information required for the review processes detailed in this order.
(b) Subsequent Full Review. The continued detention of each detainee shall be subject to subsequent full reviews and hearings by the PRB on a triennial basis. Each subsequent review shall employ the procedures set forth in section 3(a) of this order.
(c) File Reviews. The continued detention of each detainee shall also be subject to a file review every 6 months in the intervening years between full reviews. This file review will be conducted by the PRB and shall consist of a review of any relevant new information related to the detainee compiled by the Secretary of Defense, in coordination with other relevant agencies, since the last review and, as appropriate, information considered during any prior PRB review. The detainee shall be permitted to make a written submission in connection with each file review. If, during the file review, a significant question is raised as to whether the detainee's continued detention is warranted under the standard in section 2 of this order, the PRB will promptly convene a full review pursuant to the standards in section 3(a) of this order.
(d) Review of PRB Determinations. The Review Committee (Committee), as defined in section 9(d) of this order, shall conduct a review if (i) a member of the Committee seeks review of a PRB determination within 30 days of that determination; or (ii) consensus within the PRB cannot be reached.
Sec. 4. Effect of Determination to Transfer. (a) If a final determination is made that a detainee does not meet the standard in section 2 of this order, the Secretaries of State and Defense shall be responsible for ensuring that vigorous efforts are undertaken to identify a suitable transfer location for any such detainee, outside of the United States, consistent with the national security and foreign policy interests of the United States and the commitment set forth in section 2242(a) of the Foreign Affairs Reform and Restructuring Act of 1998 (Public Law 105-277).
(b) The Secretary of State, in consultation with the Secretary of Defense, shall be responsible for obtaining appropriate security and humane treatment assurances regarding any detainee to be transferred to another country, and for determining, after consultation with members of the Committee, that it is appropriate to proceed with the transfer.
(c) The Secretary of State shall evaluate humane treatment assurances in all cases, consistent with the recommendations of the Special Task Force on Interrogation and Transfer Policies established by Executive Order 13491 of January 22, 2009.
Sec. 5. Annual Committee Review. (a) The Committee shall conduct an annual review of sufficiency and efficacy of transfer efforts, including:
(1) the status of transfer efforts for any detainee who has been subject to the periodic review under section 3 of this order, whose continued detention has been determined not to be warranted, and who has not been transferred more than 6 months after the date of such determination;
(2) the status of transfer efforts for any detainee whose petition for a writ of habeas corpus has been granted by a U.S. Federal court with no pending appeal and who has not been transferred;
(3) the status of transfer efforts for any detainee who has been designated for transfer or conditional detention by the Executive Order 13492 review and who has not been transferred; and
(4) the security and other conditions in the countries to which detainees might be transferred, including a review of any suspension of transfers to a particular country, in order to determine whether further steps to facilitate transfers are appropriate or to provide a recommendation to the President regarding whether continuation of any such suspension is warranted.
(b) After completion of the initial reviews under section 3(a) of this order, and at least once every 4 years thereafter, the Committee shall review whether a continued law of war detention policy remains consistent with the interests of the United States, including national security interests.
Sec. 6. Continuing Obligation of the Departments of Justice and Defense to Assess Feasibility of Prosecution. As to each detainee whom the interagency review established by Executive Order 13492 has designated for continued law of war detention, the Attorney General and the Secretary of Defense shall continue to assess whether prosecution of the detainee is feasible and in the national security interests of the United States, and shall refer detainees for prosecution, as appropriate.
Sec. 7. Obligation of Other Departments and Agencies to Assist the Secretary of Defense. All departments, agencies, entities, and officers of the United States, to the maximum extent permitted by law, shall provide the Secretary of Defense such assistance as may be requested to implement this order.
Sec. 8. Legality of Detention. The process established under this order does not address the legality of any detainee's law of war detention. If, at any time during the periodic review process established in this order, material information calls into question the legality of detention, the matter will be referred immediately to the Secretary of Defense and the Attorney General for appropriate action.
Sec. 9. Definitions. (a) "Law of War Detention" means: detention authorized by the Congress under the AUMF, as informed by the laws of war.
(b) "Periodic Review Board" means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.
(c) "Conditional Detention" means: the status of those detainees designated by the Executive Order 13492 review as eligible for transfer if one of the following conditions is satisfied: (1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available.
(d) "Review Committee" means: a committee composed of the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff.
Sec. 10. General Provisions. (a) Nothing in this order shall prejudice the authority of the Secretary of Defense or any other official to determine the disposition of any detainee not covered by this order.
(b) This order shall be implemented subject to the availability of necessary appropriations and consistent with applicable law including: the Convention Against Torture; Common Article 3 of the Geneva Conventions; the Detainee Treatment Act of 2005; and other laws relating to the transfer, treatment, and interrogation of individuals detained in an armed conflict.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) Nothing in this order, and no determination made under this order, shall be construed as grounds for release of detainees covered by this order into the United States.
BARACK OBAMA
THE WHITE HOUSE, March 7, 2011.
The same day that President Obama issued the executive order, the white also issued a "fact sheet" on the issue of detainees at Guantanamo Bay.
THE WHITE HOUSE Office of the Press Secretary _____________________________________________________________________________ For Immediate Release March 7, 2011
FACT SHEET: NEW ACTIONS ON GUANTANAMO AND DETAINEE POLICY
In a speech nearly two years ago at the National Archives, the President advanced a four-part approach to closing the detention facility at Guantanamo Bay, keeping our country safe, and upholding the law: (1) to bring detainees to justice in prosecutions in either federal civilian courts or in reformed military commissions, (2) to comply with court-ordered releases of detainees, (3) to transfer detainees from Guantanamo whenever it is possible to do so safely and humanely, and (4) when neither prosecution nor other legal options are available, to hold these individuals in lawful military detention. He affirmed that “whenever feasible, we will try those who have violated American criminal laws in federal courts.”
The Administration remains committed to closing the detention facility at Guantanamo Bay, and to maintain a lawful, sustainable and principled regime for the handling of detainees there, consistent with the full range of U.S. national security interests. In keeping with the strategy we laid out, we are proceeding today with the following actions:
Resumption of Military Commissions
The Secretary of Defense will issue an order rescinding his prior suspension on the swearing and referring of new charges in the military commissions. New charges in military commissions have been suspended since the President announced his review of detainee policy, shortly after taking office.
The Administration, working on a bipartisan basis with members of Congress, has successfully enacted key reforms, such as a ban on the use of statements taken as a result of cruel, inhuman or degrading treatment, and a better system for handling classified information. With these and other reforms, military commissions, along with prosecutions of suspected terrorists in civilian courts, are an available and important tool in combating international terrorists that fall within their jurisdiction while upholding the rule of law.
Executive Order on Periodic Review
In the Archives speech, the President recognized there are certain Guantanamo detainees who have not been charged, convicted, or designated for transfer, but must continue to be detained because they “in effect, remain at war with the United States.” For this category of detainees, the President stated: “We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”
Today, the President issued an Executive Order establishing such a process for these detainees.
The periodic review established by this order will help to ensure that individuals who we have determined will be subject to long-term detention continue to be detained only when lawful and necessary to protect against a significant threat to the security of the United States. If a final determination is made that a detainee no longer constitutes a significant threat to our security, the Executive Order provides that the Secretaries of State and Defense are to identify a suitable transfer location outside the United States, consistent with the national security and foreign policy interests of the United States and applicable law. As the President has stated before, no Guantanamo detainee will be released into the United States.
We are grateful to all of our allies and partners who have worked with the Administration to implement the transfers undertaken thus far in a secure and humane manner, especially those who have resettled detainees from third countries. Our friends and allies should know that we remain determined in our efforts and that, with their continued assistance, we intend to complete the difficult challenge of closing Guantanamo.
Continued Commitment to Article III Trials
Pursuant to the President’s order to close Guantanamo, this Administration instituted the most thorough review process ever applied to the detainees held there. Among other things, for the first time, we consolidated all information available to the federal government about these individuals. That information was carefully examined by some of our government’s most experienced prosecutors, a process that resulted in the referral of 36 individuals for potential prosecution. Since the time of those referrals, the Departments of Justice and Defense, with the advice of career military and civilian prosecutors, have been working to bring these defendants to justice, securing convictions in a number of cases and evaluating others to determine which system – military or civilian – is most appropriate based on the nature of the evidence and traditional principles of prosecution.
In recent months, some in Congress have sought to undermine this process. In December, Congress enacted restrictions on the prosecution of Guantanamo detainees in Federal courts. The Administration opposes these restrictions as a dangerous and unprecedented challenge to Executive authority to select the most effective means available to bring terrorists to justice and safeguard our security. The Executive Branch possesses the information and expertise necessary to make the best judgment about where a particular prosecution should proceed, and Congress’s intrusion upon this function is inconsistent with the long-standing and appropriate allocation of authority between the Executive and Legislative branches.
Time and again, our Federal courts have delivered swift justice and severe punishment to those who seek to attack us. In the last two years alone, federal prosecutors have convicted numerous defendants charged with terrorism offenses, including those who plotted to bomb the New York subway system; attempted to detonate a bomb in Times Square; and conspired in murderous attacks on our embassies abroad. These prosecutions have generated invaluable intelligence about our enemies, permitted us to incapacitate and detain dangerous terrorists, and vindicated the interests of victims – all while reaffirming our commitment to the rule of law. Spanning multiple administrations, Republican and Democratic, our Federal courts have proven to be one of our most effective counterterrorism tools, and should not be restricted in any circumstances.
Military commissions should proceed in cases where it has been determined appropriate to do so. Because there are situations, however, in which our federal courts are a more appropriate forum for trying particular individuals, we will seek repeal of the restrictions imposed by Congress, so that we can move forward in the forum that is, in our judgment, most in line with our national security interests and the interests of justice.
We will continue to vigorously defend the authority of the Executive to make these well-informed prosecution decisions, both with respect to those detainees in our custody at Guantanamo and those we may apprehend in the future. A one-size-fits-all policy for the prosecution of suspected terrorists, whether for past or future cases, undermines our Nation’s counterterrorism efforts and harms our national security.
Support for a Strong International Legal Framework
Because of the vital importance of the rule of law to the effectiveness and legitimacy of our national security policy, the Administration is announcing our support for two important components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions.
Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to which 165 States are a party. An extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions. Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict.
Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported.
Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.
Voting Record
Restore Habeas Corpus
In September of 2009, the Senate voted on an amendment to restore habeas corpus rights to the prisoners a Guantanamo Bay. The measure received a majority of the votes, but not enough to pass. Barack Obama voted in favor of the measure to restore habeas corpus rights to the prisoners.
Barack Obama voted in favor of the measure to restore habeas corpus rights to the prisoners.
Protect America Act of 2007
The Protect America Act of 2007 dealt with certain aspects of electronic surveillance and the overall war on terror. In the vote to pass the legislation, most Republicans supported the bill and only about 1/3 of the Democrats supported the legislation. Barack Obama voted against the Protect America Act of 2007.
Barack Obama voted against the Protect America Act of 2007.
Military Commission Act of 2006
The Military Commissions Act passed in response to a supreme court ruling which stated that stated that military tribunals established by the Bush administrations did not align with the UCMJ. The Act defined unlawful enemy combatants and allowed for the military tribunals to be held. It passed the Senate 65-34. Barack Obama voted against the Military Commission Act of 2006.
Barack Obama voted against the Military Commission Act of 2006.
USA PATRIOT Reauthorization Act
In March of 2006, congress reauthorized the USA PATRIOT Act. Despite the fact that the PATRIOT Act had become a controversial topic, only 4 Senators opposed the act in the actual vote. Barack Obama voted in favor of the USA PATRIOT Reauthorization Act.
Barack Obama voted in favor of the USA PATRIOT Reauthorization Act.
Repeals provisions of the Military Commissions Act of 2006 that eliminated the jurisdiction of any court to hear or consider applications for a writ of habeas corpus filed by aliens who have been determined by the United States to have been properly detained as enemy combatants (or who are awaiting such determination) and actions against the United States relating to the detention of such aliens and to military commissions (thus restoring habeas corpus rights existing prior to the enactment of such Act).Allows courts to hear or consider legal challenges to military commissions only as provided by the Code of Military Justice or by a habeas corpus proceeding.
A bill to amend the USA PATRIOT ACT to extend the sunset of certain provisions of that Act and the lone wolf provision of the Intelligence Reform and Terrorism Prevention Act of 2004 to March 31, 2006.
Amending the USA PATRIOT Act to extend from December 31, 2005, to February 3, 2006, provisions of that Act and the "lone wolf" provision of the Intelligence Reform and Terrorism Prevention Act of 2004.
A bill to require a more reasonable period for delayed-notice search warrants, to provide enhanced judicial review of FISA orders and national security letters, to require an enhanced factual basis for a FISA order, and to create national security letter sunset provisions.
