Thursday, January 22, 2009

A diplomatic opening on Khadr

The Obama Executive Order on the "Closure Of Guantanamo Detention Facilities" that may impact on Omar Khadr's case is definitely a document of interest to take a look at today. There's a tone of de novo review that will be applied here, clearly a fresh set of eyes are taking a look at the entire mess. The one week delay in Attorney General designate Eric Holder's confirmation is quite unfortunate in light of the process that the order sets out, his role is clearly paramount as the coordinator of the review of the cases of detainees at Gitmo. Well done, Republicans.

Some of the aspects of the order that are worth noting from the Canadian perspective as action on Omar Khadr becomes imminent: 
Section 2. (d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantánamo require a comprehensive interagency review.

(e) New diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantánamo.

(f) Some individuals currently detained at Guantánamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.

(g) It is in the interests of the United States that the executive branch conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guantánamo who have been charged with offenses before military commissions pursuant to the Military Commissions Act of 2006, Public Law 109-366, as well as of the military commission process more generally.
2(g) clearly applies to Khadr.  

Note the inclusion of the Secretary of State, Hillary Clinton, in the list of review participants in section 4. There is clearly an emphasis on the need for a diplomatic solution where possible coming through in the order.  

As for options for Khadr, there are three.  "Transfer or release," "prosecution," or "...lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals."  
Section 4. (c) (2) Determination of Transfer. The Review shall determine, on a rolling basis and as promptly as possible with respect to the individuals currently detained at Guantánamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible.

(3) Determination of Prosecution. In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations.

(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under paragraphs (2) or (3) of this subsection, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions.
From Americablog, citing additional information sent out by the White House Press Office:
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.
This latter bit of information suggests a presumption of transfer that is preferred.  The larger point, there is clearly an opening here for a diplomatic solution to Khadr's case, despite the continued clinging by the Harper government to the cover of a judicial process.