DOD: Consider Whether We’ve Made Detainees Crazy in Periodical Review

Section 1023 of the Defense Authorization mandated that the Administration tell Congress how it was implementing Obama’s Executive Order providing periodic review of Gitmo detainees’ continued need to be detained.

SEC. 1023. PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) PROCEDURES REQUIRED.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth procedures for implementing the periodic review process required by Executive Order No. 13567 for individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note).

Here’s the directive complying with that requirement.

I’ll have plenty to say about it. But for the moment, I got hung up on this:

3. STANDARD. Continued law of war detention is warranted for a detainee subject to periodic review if such detention is necessary to protect against a continuing significant threat to the security of the United States. In making that assessment, the PRB may review all relevant materials including information from the final Task Force assessments produced pursuant to Reference (k); the work product of a prior PRB; or any relevant intelligence produced subsequent to either. Application of this standard is specifically not intended to require a re-examination of the underlying materials that supported the work products of either Reference (k) or a prior PRB and is not intended to create a requirement that each PRB conduct a zero-based review of all original source materials concerning a detainee. In assessing whether a detainee continues to meet this standard, the PRB may consider:

[snip]

(6) The detainee’s physical and psychological condition.

We know, of course, that there are a number of people at Gitmo–starting with Abu Zubaydah and Mohammed al-Qahtani–we’ve driven completely insane with our torture and abuse, who we can’t try but also can’t release (not that we’d release either of these two anyway).

But this seems to be a tacit admission that we won’t release people we’ve driven crazy. Because, Freedom!, I guess. So are we now saying that because our treatment has made them insane we will now use that as reason to keep them in custody?

Though maybe once these guys get to be so old they’re having health problems, maybe then we’ll finally release them.

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9 Responses to DOD: Consider Whether We’ve Made Detainees Crazy in Periodical Review

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bmaz @jessewegman @davidminbklyn I think Scott Greenfield and Jeralyn Merritt are both approachable and quite good on criminal issues.
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JimWhiteGNV RT @ZaidJilani: Tweeting this during another mass school shooting these guys are classy http://t.co/PmrCaHKHCO
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emptywheel @mattizcoop Now whyever wouldn't you want him as AG? I think w/all the PR pretending DOJ doesn't like subpoenaing journos it'd be problem.
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emptywheel @Krhawkins5 But he was chased out of govt by David Addington precisely to prevent him having influence @aliwatkins @kendilanianap @froomkin
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bmaz @jessewegman @davidminbklyn Far too much reliance on law professors.
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bmaz @jessewegman @davidminbklyn Not you personally, but generally (and from some friends I know well, I see far too little.
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emptywheel Litigious FOIA terrorist "He has filed 15 lawsuits prior to this week's 4 since 2012, acc to Courthouse News records" http://t.co/Xv08XKRRrB
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bmaz @rickhasen Probably. But if Obama waits until the Senate is lost, then Bharara becomes far more likely. And Schumer will press hard for him
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bmaz @davidminbklyn @jessewegman ...that really don't have a clue about actual formal litigation and, especially, trials.
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bmaz @davidminbklyn @jessewegman ...actual experienced practitioner on the various types of cases instead of reliance on law profs and lay people
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