The lede to "Detainee Review Proposal Is Prepared for President," a New York Times article:
President Obama’s advisers have been drafting an executive order that would set up a system for periodically reviewing the cases of Guantánamo prisoners whom courts have approved for detention without trial, officials said.Courts. Naturally I assume "courts" means actual courts of law with real judges. But how do courts approve detention without trial? We'll get to that. Another statement from the article:
Currently 174 prisoners remain at the base, 48 of whom the administration has decided to keep holding indefinitely without trial. Several dozen more are Yemenis who have been deemed eligible for eventual repatriation if and when security conditions improve in their country.Presently, the administration decides which prisoners to detain without trail. But in the future, the courts will decide? The Times describes the Administration plan:
The Obama proposal ... would establish a “periodic review board” drawn from many agencies, not just the military, and modeled on a parole board, one official said. Detainees would be represented by lawyers and would have greater access to some of the evidence against them....
The Obama administration’s proposal ... would supplement such habeas corpushearings in court. While judges would determine whether it was lawful to hold someone as a wartime detainee — because he is part of Al Qaeda or the Taliban — the review boards would determine whether it was necessary to do so, one official explained.It looks to me as if the Obama Administration is pretending that if real judges and "review boards" meet together in the same room (i.e. "in court") then they can claim that a "court" has approved detention without trial. Yet if you were a prisoner caught in this system, your future would ultimately depend not on court judges and their assessment of "lawful," but some review board's definition of "necessary."