Today, the Obama administration missed its own deadline to close the prison at Guantánamo Bay. As you might recall, a year ago on his second full day in office, President Obama signed an executive order to close the prison within a year. Not only does Guantánamo remain open, but according to news reports today, an administration task force has recommended the detention without trial of nearly 50 of the 198 prisoners held there because "they are too difficult to prosecute but too dangerous to release."

Today, we unveiled a new website focusing on indefinite detention.

The new site includes:

• An interactive video player featuring former Guantánamo detainees speaking about their experiences in U.S. custody
• FAQs about indefinite detention
• “The World is Not a Battlefield” interactive map feature
• Downloadable campaign poster featuring the winning design from the ACLU’s Restore America Poster Contest
• A new action asking President Obama to end indefinite detention and to close Guantánamo

The ACLU has long disputed the fact that there exists any significant category of detainees who are too dangerous to release, but too difficult to prosecute. If there is credible evidence that prisoners are dangerous, that evidence should be introduced against them in criminal trials in our federal court system. The criminal laws are broad enough to reach anyone who presents a serious threat, and the time-tested federal courts are fully capable of affording defendants fair trials while preserving the government's legitimate interest in protecting information that is properly classified.

Check out the new features on our indefinite detention page. And join us in letting President Obama know that just as important as closing Guantánamo quickly is closing it right, and that means putting an end to the illegal policy of indefinite detention without charge or trial.

Today an important deadline was missed. One of the most shameful chapters of American history was to have been brought to a close with the shuttering of the prison at Guantánamo Bay. President Obama's executive order to close the prison within a year (PDF), made on his second full day in office, was a bold act that signaled a strong commitment to breaking away from the unlawful policies of the Bush administration.

Sadly, the prison is still open. President Obama has recently reaffirmed his commitment to closing the facility, and that is encouraging. Yet, at the same time, it is worrisome that when Guantánamo finally does close, it appears that some of its most shameful policies will continue on U.S. soil, potentially reducing the closure to a symbolic gesture.

The administration has admittedly run into significant obstacles to closing the prison. Congress, awash in fear-mongering and claims of "Not in my backyard," helped turn Guantánamo into a political football by blocking transfers of detainees cleared for release to the U.S. and launching a failed attempt to block the Justice Department from prosecuting detainees in federal court. But the administration is also to blame, as it has essentially discouraged other countries from accepting detainees by refusing to accept any into the U.S., fought the release of cleared detainees even up to the Supreme Court, and declared recently that it won't release detainees to Yemen. The notion that Americans are made safer by continuing to detain prisoners who have been deemed appropriate for release simply because they come from certain countries will only serve to inflame those who believe that the U.S. has lost respect for the rule of law.

It is vital that the failure to meet the closure deadline does not give in to a sense of inertia or inevitability that the prison will be open for a long time to come. But it is also just as important that when Guantánamo is finally closed, it is closed right. That means that along with closing the facility, we must also put an end to its illegal policies like indefinite detention. Unfortunately, the latest indications from Washington don't bode well.

Last month, the Obama administration announced its intention to purchase the Thomson Correctional Center in Illinois for the purpose of holding some of the detainees currently remaining at Guantánamo. However, all indications are that some of the detainees who would be sent to the Thomson prison would be held under a policy, unchanged from the Bush administration, of indefinite detention without charge or trial. The Obama administration may have inherited the problems of Guantánamo from the Bush years, but by continuing the prison's lawless policies on U.S. soil, it would take undisputed ownership of them.

In deciding how to handle detainees, the administration should conduct a thorough review of each case. Detainees against whom there is no credible evidence should be repatriated back to their home countries or resettled elsewhere where they won't be tortured. Detainees against whom there is evidence of terrorist activity should be tried in federal courts. The American criminal justice system is more than capable of trying terrorism suspects while protecting both sensitive security evidence and fundamental rights. The federal courts have successfully prosecuted more than over 200 terrorism cases, including those of "Blind Sheik" Omar Abdel-Rahman for his role in the 1993 bombing of the World Trade Center, "shoe-bomber" Richard Reid and Zacarias Moussoui for conspiring in the 9/11 attacks.

No one disputes that the government has the right, under the laws of war, to detain prisoners captured on the battlefield until the end of hostilities. But the Bush and Obama administrations have defined their powers to do so far too broadly. They have used such authority to pick up and detain prisoners from around the globe who they deem engaged in the "war on terror," essentially defining the "war zone" as the entire globe. Moreover, the "war on terror" will never come to a public, decisive end, so the duration of the war is essentially forever, opening up the possibility that America would detain individuals for the rest of their lives without giving them their due process rights. But even for those detainees at Guantánamo for whom the laws of war would ordinarily apply, the unique situation demands that they be charged or released after so many years of imprisonment without the protections of domestic and international law.

Guantánamo must close, and when it finally does, celebration will be in order. But the illegal policies embodied by the prison must disappear along with it. This moment in time presents a crucial opportunity to turn the page on the tragic policies of the past and firmly reclaim our moral authority. Continuing the failed policies of Guantánamo, on U.S. soil or elsewhere, would be an error of historic proportions.

Cross-posted to Daily Kos and Huffington Post.

Tomorrow marks the one-year anniversary of President Obama’s commitment to close the prison at Guantánamo (PDF). Although the administration has already admitted it will miss its self-imposed deadline, the ACLU will continue to advocate for Guantánamo to be closed as soon as possible and, most importantly, to be closed correctly.

To mark the missed deadline, we’ll be joining MoveOn, Amnesty, Human Rights Watch and others, by using Twitter and Facebook to get everyone online talking about closing Guantánamo.

Join us by taking action online today, January 21 and tomorrow, January 22:

• Tweet messages with the “#closegitmo” hashtag (if you follow the national ACLU’s Twitter feed, you can re-tweet messages that we will be posting)


• Change your Twitter or Facebook profile picture to an orange ribbon with a message to “CLOSE GITMO”. (Twitter and Facebook will automatically resize these .gifs:

Right-click on these images to download. (Internet Explorer users, select "Save Picture As"; Firefox, Chrome and Safari users, select "Save Image As".)



• Spread the word!  Our goal is to make #closegitmo a top trending topic, and our success depends on reaching many people in a short amount of time to jump-start the conversation. Help us deliver this important message by asking others to join us (especially those with large followings online!)

For the latest ACLU news on Guantánamo, visit www.closegitmo.com.

Originally posted on The Torture Report.

New materials released last week in the ACLU’s ongoing FOIA proceedings seeking documents on the destruction of the torture videotapes add some details to the narrative in Chapter 3.

The materials are Vaughn indexes containing brief descriptions of 165 internal CIA electronic communications relating to the reasons behind the destruction of the tapes. The CIA continues to withhold the documents themselves, but descriptions of several of the documents are illuminating.

A few of the things we learn:

1. The conversation about destroying the tapes began during the torture of Abu Zubaydah. Two cables sent from the black site to CIA headquarters on August 19, 2002 discuss “lessons for the future based on CIA experience” and an August 20, 2002 cable discusses “a proposed policy regarding the use of videotapes in interrogations.”
2. There were extensive conversations about destroying the videotapes in December 2002, right after a CIA lawyer had traveled to the Thai black site to review the tapes and just as the CIA’s inspector general was beginning his special review of the CIA’s RDI program. This conversation, carried out in numerous cables between December 19 and the end of the month, included “proposals on how to handle the possible destruction of the videotapes” and culminated in a memo to CIA Director George Tenet on “the disposition of the videotapes.”
3. Chapter 3 suggested that, after the July 38, 2003 Principals meeting, the question of the tapes “seemed settled” until the publication of the Abu Ghraib photos in April 2004. In fact, the Vaughn index shows the conversation continuing even during this period, with a sequence of emails around September 22, 2008 “concerning a draft memo on the destruction of the videotapes” and a February 19, 2004 email with attachment “concerning the legalities as to whether the CIA is legally required to retain the videotapes.”
4. There are numerous emails in the days leading up to destruction of the videotapes on November 8, 2005, just after the Washington Post published Dana Priest’s front-page exposé of CIA secret prisons and the day before The New York Times published a story on the CIA inspector general’s damning report. The CIA is clearly bracing for these leaks: on October 31, there is a 13-page email chain “discussing whether to publically acknowledge the counterterrorism program” and on November 1, an email with attachment “that discusses the Agency’s detention and interrogation program from a legal standpoint.” There are communications orchestrating how the agency will talk about the destruction of the tapes—a November 4 email “that contains proposed language regarding the disposition of the tapes,” and a November 10 email with the subject “Language for tapes” that discusses “communication between CIA officers relating to the tapes.” Finally, there are destruction orders themselves: a one-page cable on November 8 from the black site to headquarters “requesting permission to destroy the videotapes” and a two-page cable that same day, under the subject “Approval to destroy videotapes,” “discussing a proposal and granting permission to destroy.”

Interestingly, in a related affidavit summarizing the agency’s reasons for continuing to withhold these communications, the CIA says it was willing to release parts of thirteen of the documents.

Prior to releasing the documents, however, the Agency was informed by the Department of Justice that Special Prosecutor John Durham was asserting Freedom of Information Act (FOIA) Exemption (b)(7)(a) over the proposed-for-release portions of 10 of the 13 documents that the CIA was prepared to release in part. The other three documents the CIA proposed for partial release have Congressional equities that require consultation with Congress before a final determination can be made. Therefore, all of the documents are currently withheld in full.

The three documents being withheld pending consultation with Congress relate to the February 2003 briefings of two members each of the House and Senate Intelligence Committees—the briefings that prompted Jane Harman’s letter counseling against destroying the tapes.

The 10 documents that Durham is apparently blocking from release, on the grounds that their release would interfere with an ongoing criminal investigation, are:

1. a 11/9/05 email with embedded cable “confirming the destruction of the videotapes that were stored at a field location”;
2. an 10/25/02 cable from CIA Headquarters to the field “discussing a proposal to destroy the videotapes”;
3. a 10/27/02 document consisting of “excerpts of two cables discussing the use of the videotapes”;
4. a 12/02/02 cable with the subject “Destruction of classified materials” that contains “excerpts from two cables discussing a proposal to destroy the videotapes;
5. a 12/03/02 cable with the same subject line “discussing the proposed destruction of classified material”;
6. the 11/08/05 cable requesting permission to destroy the videotapes;
7. the 11/08/05 cable granting permission to destroy the videotapes;
8. an undated memo that is a “two-page timeline” “regarding the destruction of the AZ tapes;
9. an undated three-page memo with the subject line “Interview Questions” that is a “list of questions regarding the CIA’s RDI program”; and
10. an undated document with the subject “CIA Interrogation Techniques” that is a “thirteen-page memo with handwritten marginalia discussing the CIA’s interrogation of Abu Zubaydah.”

We know from these most recent Vaughn indices, which follow similar indices of documents relating to the tapes’ destruction that the CIA has forwarded to the ACLU in recent months, that there is a substantial paper trail surrounding the destruction of the videotapes. We know Durham has been down that trail. Where is his investigation going?