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.


(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:


(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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

9 replies
  1. MadDog says:

    “… and is not intended to create a requirement that each PRB conduct a zero-based review of all original source materials concerning a detainee…”

    This part is good too! Given that Janice Rogers Brown from Oz has made clear that all that original source material should have the legal presumption of regularity, it makes no sense to ever go back to the beginning and validate the detention decisions.

    Shorter PRB: “Once in, never out.”

  2. emptywheel says:

    @MadDog: Actually there is a line that may affect Latif:

    1) If, at any time during the periodic review process established in Reference (a), material information tends to call into question the legality of detention, the matter will be referred to the Secretary of Defense and the U.S. Attorney General for appropriate action. Any information that tends to call into question the legality of detention, for example, by tending to undermine a determination of the legality of detention made after March 13, 2009, shall be presented to the PRS Director, who will promptly assess the information in consultation with the DoD Office of General Counsel.

  3. MadDog says:

    @emptywheel: No word yet on SCOTUS accepting certiorari for the Latif appeal? I thought bmaz said they had a deadline to say “yay or nay”, and it seems to me we must be getting close to it.

    Anyways, can we really expect the jailers to self-police? Sounds pretty unrealistic.

  4. MadDog says:

    OT – The lead story on the CBS Evening News was this:

    JPMorgan Chase acknowledges $2B trading loss

    “JPMorgan Chase & Co. (JPM), the largest bank in the United States, said Thursday that it lost $2 billion in a trading portfolio designed to hedge against risks the company takes with its own money…

    …”The portfolio has proved to be riskier, more volatile and less effective as an economic hedge than we thought,” CEO Jamie Dimon told reporters. “There were many errors, sloppiness and bad judgment…”

    …”We will admit it, we will learn from it, we will fix it, and we will move on,” he said. Dimon spoke in a hastily scheduled conference call with stock analysts. Reporters were allowed to listen…

    …Dimon said the type of trading that led to the $2 billion loss would not be banned by the so-called Volcker rule, which will ban certain types of trading by banks with their own money…”

    Shorter Jamie: “Hey! MOTUs are as stupid as anybody else. Look at me.”

  5. emptywheel says:

    @MadDog: They will discuss it on May 17. I am working on a post, but the govt has basically argued that this is an interlocutory appeal and SCOTUS shouldn’t hear it until after the District has determined whether Latif is credible or not.

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