The Guantanamo prison is a problem with no solution. On the one hand, Congress has stripped all funds to relocate detainees to U.S. prisons. On the other, diplomatic efforts to relocate them to other countries has been an abysmal failure. Despite the administration's best efforts to find an answer to an increasingly frustrating situation, there doesn't appear to be one.

Therefore, we can expect a new executive order allowing indefinite detention of prisoners with periodic reviews. A solution that's no solution at all for a problem with no clear answer.

ProPublica:

The draft order, a version of which was first considered nearly 18 months ago, is expected to be signed by President Obama early in the New Year. The order allows for the possibility that detainees from countries like Yemen might be released if circumstances there change.

But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

Nearly two years after Obama's pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.

That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president's embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.

After taking office, the Obama administration reviewed the detainee population at Guantanamo Bay and chose 48 prisoners for indefinite detention. Officials, who spoke on the condition of anonymity, said that number will likely increase in coming months as some detainees are moved from a transfer category to a continued detention category.

The White House confirmed that an order is being drafted:

A White House official, who asked to speak on the condition of anonymity, later confirmed that the draft order has not yet been given to the president. The official had few details but said the order “would set up periodic review of the detention status of those detainees who cannot be tried,” in either military commissions or federal courts.

In 2008, Guantanamo detainees won the right to challenge the lawfulness of their detention in court. The executive order aims to create an executive branch review which would occur separately from the court review and would weigh the necessity of the detention, rather than its lawfulness, officials said.

"Perhaps the dangerousness of the detainee's country of origin could change, or the group that the detainee is affiliated with could cease to exist," one official explained.

Any way you cut it, it's bad, and likely to get worse. This is one of those situations where there's no clear pathway to an end that will satisfy the Constitution and people. On the one hand, it's crazy to think that there are no bad guys in the world. On the other, there's no guarantee these people held at Guantanamo are the bad guys, despite internal reviews and the like.

What do you think should be done about them?

Sad, isn't it? That psychologists have to be told not to help torturers, I mean. You'd hope it would be obvious:

Psychologists in the United States have been warned by their professional group not to take part in torturing detainees in U.S. custody.

Now the American Psychological Association has taken the unprecedented step of supporting an attempt to strip the license of a psychologist accused of overseeing the torture of a CIA detainee.

The APA has told a Texas licensing board in a letter mailed July 1 that the allegations against Dr. James Mitchell represent "patently unethical" actions inconsistent with the organization's ethics guidelines.

If any psychologist who was a member of the APA were found to have committed the acts alleged against Mitchell, "he or she would be expelled from the APA membership," according to the letter, a copy of which was obtained by The Associated Press. APA spokeswoman Rhea Farberman confirmed its contents.

George Galloway interviews Andy Worthington on UK knowledge of torture on Guantanamo detainees for Digital Radio.

I don't know that there is anyone on this planet who knows more about what went on at Guantanamo than independent journalist Andy Worthington, and that includes those inside the administration. Through incredibly hard work, diligence and a mountain of FOIA information, Andy has been chronicling this deepest, darkest chapter of American history.

Andy has written a book, The Guantanamo Files, that I am reading now and on which I will be hosting a book chat in the very near future. I can't lie, it's taking me longer to read it than it should, because I have to keep putting it down. There's not a chapter I've read that I haven't wanted to scream, "This should never have happened! This is not what a democratic country does! NOT IN MY NAME!" It is a detailed and unblinking look at not only a strange mixture of fear and incompetence, but of real evil as well. Indeed, Andy Worthington has been instrumental in documenting just what a legal black hole Guantanamo is:

My life as a full-time chronicler and analyst of Guantánamo and the “War on Terror” began with the 14 months I spent researching and writing my book The Guantánamo Files, which (with additional chapters published online) tells the stories of the 779 prisoners who have been held at Guantánamo throughout its eight-year history. I then began writing articles following developments at Guantánamo, helping to spread the word through various websites, and am delighted to report that my website now receives an average of 150,000 page views a month.

My thanks to all who have discovered my work, and especially to those who follow it on a regular basis. Three months ago, despite stalling and compromises on the part of the Obama administration, I thought that we were at least still proceeding in the right direction, but the last few months have proved me wrong, and have demonstrated that a huge amount of work still needs to be done. This is where your help — reading my work, helping to get it out to other people and providing financial support to enable me to keep spreading the word — is so important.

The one-year deadline that President Obama set for the closure of Guantánamo has passed, those who oppose the prison’s closure appear to have gained the upper hand in an ongoing propaganda war, and the administration has made numerous fundamental mistakes: failing to provide new homes on the US mainland for cleared prisoners who cannot be repatriated because they face the risk of torture, reviving the Bush administration’s reviled Military Commission trial system, and insisting that it has the right to hold some prisoners indefinitely without charge or trial.

With widespread indifference in the mainstream media, my mission — to educate people about the terrible mistakes that have been made, and the human cost of those mistakes — continues, not just with regard to Guantánamo, but also in researching the “ghost prisoners” of the CIA’s secret detention program (whose whereabouts are largely unaccounted for), exposing the baleful history of the prison at Bagram airbase in Afghanistan, calling for accountability for those who made America a “Torture Nation,” and exposing British complicity in torture and the injustice of my home country’s own anti-terror laws.

In the last three months, I have updated my definitive Guantánamo prisoner list, produced an annotated version of the first ever Bagram prisoner list, and published five articles listing all my work in chronological order, as well as reporting the stories of the prisoners released from Guantánamo, reporting on their habeas corpus petitions in the US courts, exposing right-wing lies and misinformation, and the spinelessness of many Democrats, and criticizing the administration for its inability to place principles above pragmatism.

Andy is currently seeking donations to help continue his important work. Please donate if you can. But if that's not possible, I urge you to considering purchasing Andy's book, The Guantanamo Files, in advance of our book chat. It's an excellent read, if a bit harrowing and should make for a very lively book chat.

Sen. Chuck Grassley (R-IA) wants to scare off Justice Dept lawyers from professionally addressing the Gitmo detainee issue. Spencer Ackerman reports:

In the latest bit of brazen slander from the right, Republican Senators are trying to invent a scandal about Justice Department lawyers who — horror — represented Guantanamo detainees. You know, provided the representation that the Rehnquist and Roberts Supreme Court has repeatedly ruled those detainees are entitled? And which even the military commissions provide for? Instead, there’s this McCarthyite tactic of calling Justice Department lawyers the “Gitmo Nine,” a name that oh-so-cleverly suggests that those lawyers were themselves detained at Guantanamo.

To reiterate: Republicans have no actual desire to seriously address national security issues. If the Democrats find their balls, maybe they can take a shot at closing out this shameful chapter of American history.

If any of your loved ones are serving abroad, you might be interested to know the Obama administration, by virtue of SCOTUS's refusal of the case, just got the Supreme Court's blessing to torture. Obviously, other countries will follow our lead:

In the wake of the U.S. Supreme Court’s refusal Monday to review a lower court’s dismissal of a case brought by four British former Guantanamo prisoners against former defense secretary Donald Rumsfeld, the detainees’ lawyers charged Tuesday that the country’s highest court evidently believes that "torture and religious humiliation are permissible tools for a government to use."

The U.S. Circuit Court of Appeals in Washington, D.C., had ruled that government officials were immune from suit because at that time it was unclear whether abusing prisoners at Guantanamo was illegal.

Channeling their predecessors in the George W. Bush administration, Obama Justice Department lawyers argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The Obama administration had asked the court not to hear the case. By agreeing, the court let stand an earlier opinion by the D.C. Circuit Court, which found that the Religious Freedom Restoration Act – a statute that applies by its terms to all "persons" – did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law.

The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that "torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."

Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any constitutional rights.

The circuit court ruled that "torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."

That opinion was written by Judge Karen Lecraft Henderson, who was appointed to the federal circuit court by Ronald Reagan in 1986 and to the Appeals Court in 1990 by George H.W. Bush.

The British detainees spent more than two years in Guantanamo and were repatriated to Britain in 2004 with no charges ever having been filed against them.

Eric Lewis, lead attorney for the detainees, said, "It is an awful day for the rule of law and common decency when the Supreme Court lets stand such an inhuman decision. The final word on whether these men had a right not to be tortured or a right to practice their religion free from abuse is that they did not."

"The lower court found that torture is all in a days’ work for the secretary of defense and senior generals," he added. "That violates the president’s stated policy, our treaty obligations, and universal legal norms. Yet the Obama administration, in its rush to protect executive power, lost its moral compass and persuaded the Supreme Court to avoid a central moral challenge. Today our standing in the world has suffered a further great loss."

Center for Constitutional Rights Senior Attorney Shayana Kadidal, co-counsel on the case, told IPS, "In many ways the opinion the Supreme Court left standing today is worse when one gets past the bottom line – no accountability for torture and religious abuse – and digs into the legal reasoning."

"One set of claims are dismissed because torture is said to be a foreseeable consequence of military detention," he said. "How will the parents of our troops captured in future foreign wars react to that?"

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(h/t David at VideoCafe.)

On This Week with George Stephanopoulus:

The Obama Administration is trying to engineer a soft-landing for the President's promise to close Guantanamo by January 22, 2010.

Friday morning White House officials told me that some detainees would still be in Gitmo after the deadline after this story broke in the Washington Post. And in our 'This Week' interview, Defense Secretary Robert Gates confirmed that "it's going to take a little longer" than promised to close the prison.

Here’s our full exchange:

STEPHANOPOULOS: A major story in "The Washington Post" suggesting that the president's deadline of January 22nd for closing Guantanamo will not be met. And White House officials tell me that at least some prisoners will still be in Guantanamo on January 22nd and beyond. How big a setback is that and how long will it take to finally close Guantanamo?

GATES: When the president elect met with his new national security team in Chicago on December 7th...

STEPHANOPOULOS: 2009.

GATES: ...last year, this issue was discussed, about closing Guantanamo and executive orders to do that and so on. And the question was, should we set a deadline? Should we pin ourselves down? I actually was one of those who said we should because I know enough from being around this town that if you don't put a deadline on something, you'll never move the bureaucracy. But I also said and then if we find we can't get it done by that time but we have a good plan, then you're in a position to say it's going to take us a little longer but we are moving in the direction of implementing the policy that the president set. And I think that's the position that we're in.

STEPHANOPOULOS: That's where we are. So the deadline of January 22nd will not be met?

GATES: It's going to be tough.

STEPHANOPOULOS: And -- and how many prisoners will be there on January 22nd, do you know?

GATES: I don't know the answer to that.

STEPHANOPOULOS: Is it -- but, as you said, it's going to be tough and likely will not be met.

GATES: We'll see.

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Probably the most ironic -- no, make that flat-out bizarre -- aspect of Glenn Beck's ultimately successful campaign to force out Van Jones is that it was predicated on Jones' supposed indulgence in extremist rhetoric ideas.

This isn't just a matter of the pot calling the kettle black. It's more like the black hole calling the sunspot dark.

Glenn Beck's history of indulging in extremism -- not just turning a blind eye to its presence, but promoting it outright to an audience of millions -- is so deep and wide that whatever indiscretions Jones might be guilty of fade into total insignificance.

Of course, we're all familiar with the remarks that lie at so much of the root of this matter: Beck's outrageous claims that President Obama is a "racist" who has a "deep-seated hatred of white people", which prompted a largely succesful campaign by Color of Change to encourage advertisers to pull their support for Beck's Fox News program. But that, frankly, is barely scratching the surface.

Keith Olbermann has put out a plea for information about Beck's own background in outrageous remarks. Of course, all he probably needs to do is go through the C&L archives on Beck

Still, what Olbermann -- and everyone else wondering how to fight back from this latest round of right-wing viciousness -- should focus on is the inordinate number of times that Beck has simply promoted extremist ideas and memes straight out of the most fringe elements of the American far right.

It goes back several years. Beck, in fact, openly promoted the John Birch Society and its "New World Order" conspiracy theories frequently when he was still at CNN Headline News. As I observed at the time:

Beck is busy building a narrative that not only opens the Pandora's Box of mass public consumption of far-right conspiracism, it also portrays the most hateful and paranoid and poisonous bloc of American politics as credible and normative.

Since joining Fox in January of this year, however, the tendency has not only intensified, it's simply gone off the rails.

Most notably, Beck has actively promoted ideas, theories, and concepts taken directly from the far-right "Patriot"/militia movement, many of which in turn derive from the ugliest sector of the right, white supremacy:

-- He "war-gamed" out an apocalytpic American future in which society has completely crumbled, leaving behind a "Road Warrior" society in which militias remained the only defenders of the remnants of white society.

-- He told his audience for several weeks running that he "could not disprove" the existence of concentration camps run by FEMA in which conservatives were to be rounded up. After a few weeks of this, he finally ran a segment that in fact did debunk these claims, explaining that in reality all of the supposed "evidence" for these camps was the product of a long-running hoax that began in the 1990s with the "Patriot"/militia movement. (He then later claimed that he had done nothing to promote these theories.)

-- He ran several segments, including one on his radio show, in which he promoted the concept of the secession of Texas from the Union. A little later, he tried to pretend he didn't agree with the concept while in fact giving a secessionist the opportunity to promote his plans to Beck's audience.

-- He regularly promoted "one world government" paranoia. This included a supposed plot to put us all on a global currency controlled by the New World Order.

-- He tried to argue that the chief cause of the sour economy was the United States' reliance on a central banking system.

-- He hosted an entire hourlong segment devoted to promoting militia-derived constitutional theories about state sovereignty.

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Spencer was at a Senate hearing and this is very disturbing.

Defense Department General Counsel Jeh Johnson moved the Obama administration into new territory from a civil liberties perspective. Asked by Sen. Mel Martinez (R-Fla.) the politically difficult but entirely fair question about whether terrorism detainees acquitted in courts could be released in the United States, Johnson said that “as a matter of legal authority,” the administration’s powers to detain someone under the law of war don’t expire for a detainee after he’s acquitted in court. “If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, “that is true irrespective of what happens on the prosecution side.”

Martinez looked surprised. “So the prosecution is moot?” he asked.

“No, no, not in my judgment,” Johnson said. But the scenario he outlined strongly suggested it is. If an administration review panel “determines this person is a security threat” and “for some reason is not convicted of a lengthy prison sentence, I think we have the authority to continue to detain someone” under “law of war authority” as granted by the September 2001 Authorization to Use Military Force, Johnson said. And beyond that source of authority “we have the authority in the first place.” I’m no lawyer, but that sounds a lot like Johnson is claiming inherent presidential authority from the Constitution to detain someone after he’s been acquitted in court if the president believes that person to be a security threat. [Update: I think I'm wrong about that. Johnson is claiming authority from the law-of-war construct for such detentions, and that doesn't stem from any constitutional interpretation of inherent power. Apologies.]

Oh, and Johnson also suggested that the U.S. detention facility at Guantanamo Bay might remain open after January 2010, since “you can’t prosecute some significant subset of 220 people before January.” He said the administration will continue to detain some of those Guantanamo detainees, “whether at Guantanamo or somewhere else.”

Glenn Greenwald has much more about the "Unjustice system."

While I was away for almost two weeks, the ACLU and many of my blogger pals took to their keyboards and wrote about the many brutal deaths that occurred at the hands of people engaging in torture for the US. The torture issue is horrifying and the longer we get away from the Bush years, the more information the ACLU is able to gather. These documents are, in a word, vile.

The ACLU writes:

Tortured to Death

Today, several prominent bloggers are writing about detainees who died in U.S. custody, using documents released through the ACLU’s Freedom of Information Act lawsuit. We’re not talking suicide, or death by "natural causes." No, this is death as a result of torture and abuse while in custody. This effort comes on the eve of the release — we hope — of the CIA Inspector General’s report on waterboarding. (You might’ve heard last Friday that the release was delayed.)

At Salon, Glenn Greenwald writes:

The interrogation and detention regime implemented by the U.S. resulted in the deaths of over 100 detainees in U.S. custody — at least. While some of those deaths were the result of "rogue" interrogators and agents, many were caused by the methods authorized at the highest levels of the Bush White House, including extreme stress positions, hypothermia, sleep deprivation and others. Aside from the fact that they cause immense pain, that’s one reason we’ve always considered those tactics to be "torture" when used by others — because they inflict serious harm, and can even kill people. Those arguing against investigations and prosecutions — that we Look to the Future, not the Past — are thus literally advocating that numerous people get away with murder.

Marcy Wheeler focuses on the case of detainee 04-309:

Now I’m no doctor–and I definitely can’t make sense of the cardiac findings. But it sounds like "stress positions," "sleep deprivation," "walling," and "water dousing" are all leading candidates to have caused the death of 04-309.

Drational at Daily Kos zeroes in on one detainee, known as Habibullah, and the circumstances of his death.

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Maybe this sinking feeling in my gut would go away if anyone in the Obama administration bothered to explain the specifics of why they believe indefinite detention is necessary. How can you be so sure someone is too dangerous to release, and yet not have enough evidence to prosecute them?

The Obama administration, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, is drafting an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the facility in Cuba, White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January deadline.

White House spokesman Ben LaBolt said there is no executive order and that the administration has not decided whether to issue one. But one administration official suggested that the White House was already trying to build support.

"Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said. Such an order could be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should be prosecuted or released.

Big Tent Democrat and Glenn Greenwald reactions here.