WASHINGTON — Throughout the campaign, Barack Obama made many promises to the American people. Msnbc.com has chosen 14 of these to explain, explore, and track. See if the new president keeps his word, and vote on his progress during the first 100 days.
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Obama’s words: “We are going to lead by example, by maintaining the highest standards of civil liberties and human rights, which is why I will close Guantanamo and restore habeas corpus and say no to torture.”
The issue: In November of 2001, President George W. Bush established military tribunals at Guantanamo to prosecute any detainees who were accused of violating the customary laws of war by attacking civilians.
In its Rasul decision in 2003 and its Boumediene decision in 2008, the Supreme Court ruled that detainees held at Guantanamo had habeas corpus rights to get a hearing before a federal judge to challenge the basis of their detention.
These Supreme Court decisions essentially gave federal judges the power to order the release of those held at Guantanamo, if the judges decided the evidence of their potential danger was not persuasive.
Now President Barack Obama has taken the initiative in ordering that Guantanamo be closed.
But difficulties abound. Some of the detainees could be sent back to their native countries, but at least 15 so-called "high value detainees" — considered among the most dangerous — present a problem.
Whether or not they will be tried in U.S. courts or sent to other countries remains to be seen. But few countries are eager to accept them.
On the question of torture, Susan Crawford, the former judge whom Defense Secretary Robert Gates appointed to oversee decisions on whether to bring Guantanamo detainees to trial told the Washington Post on Jan. 14, 2009 that, in 2002 and 2003, the U.S. military had tortured a Saudi man, Mohammed al-Qahtani, who allegedly planned to take part in the Sept. 11 attacks.
Crawford said interrogators had subjected al-Qahtani to sleep deprivation, nudity, and prolonged exposure to cold.
CIA director Michael Hayden has said that waterboarding, a form of simulated drowning, was used on three al Qaida detainees, one of whom was al-Qahtani, but is no longer being used.
Following through: Just two days after assuming office, Obama issued an order to close the prison at Guantanamo Bay within a year. But his executive order left open the possibility of keeping some of those held at Guantanamo in military custody for years at some other location.
Brookings Institution legal expert Benjamin Wittes said Obama’s Guantanamo order “does not preclude the eventual use of military commissions or some other alternative trial venue. And, critically, it does not preclude the continued non-criminal detention of certain — perhaps many — current Guantanamo detainees.”
It is not clear where Obama intends to send the Guantanamo prisoners. A bill has been introduced in Congress by Sen. Tom Harkin, D-Iowa that would relocate them to Fort Leavenworth, Kansas.
The president also created a task force, composed of the attorney general, the secretary of defense, the chairman of the Joint Chiefs of Staff, and others who will study how to deal with Guantanamo detainees and terrorist suspects caught overseas by U.S. forces.
Obama also banned the harshest interrogation methods, reshaping how the United States prosecutes and questions al-Qaida, Taliban or other foreign fighters who pose a threat to Americans.
U.S. interrogators will now be required to use only techniques permitted in the Army Field Manual. "This is following through not just on a commitment I made during the campaign but an understanding that dates back to our Founding Fathers, that we are willing to observe core standards of conduct — not just when it's easy, but also when it's hard," the president said.
Obama created another task force to study whether the interrogation techniques permitted by the Army Field Manual are effective enough to acquire “the intelligence necessary to protect the Nation,” and to recommend any different interrogation methods that might be needed.
In an April memo to Congress, CIA Director Leon Panetta reiterated these policies, saying, "Under the Executive Order, the CIA does not employ any of the enhanced interrogation techniques that were authorized by the Department of Justice from 2002 to 2009."
Also in April, the dispute over detainees spilled over into Obama’s Afghanistan policy.
Using arguments repeatedly made by the Bush administration, Justice Department lawyers urged federal district judge John Bates to not allow citizens of Yemen, Pakistan and Tunisia who are held as illegal enemy combatants at the Bagram Airfield in Afghanistan to proceed with habeas corpus actions to win their freedom.
Allowing these prisoners to use the habeas corpus procedure would, said Obama administration lawyers, “divert the military’s attention and resources at a critical time for operations in Afghanistan” and “intrude into the military’s operations.”
By allowing the prisoners to litigate their way to freedom, the district court would be “injecting itself deeply into core military matters, potentially imposing onerous burdens on the Executive in violation of basic separation-of-powers principles,” the Obama administration said.
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