Tuesday, March 8, 2011

The Gitmo Problem

In the latest chapter of the Guantanamo Bay ("Gitmo") debacle, President Obama appears to have gone the way of President G.W. Bush on the issue of resuming the military tribunals there at Gitmo.  Before we get started on that issue though, as a brief recap, we have written on this topic extensively HERE and HERE and HERE and HERE, and we even provided an in-depth break down HERE as to why military tribunals are no better (and are, in fact, worse) than Federal Courts (aka "Civilian Courts") when it comes to prosecuting terrorist suspects.  So please refer back to those posts (especially the break down post) for background info as needed.  Now, having said all of that, let us return our attention to this latest announcement by President Obama to continue one of the signature policies of the Bush Administration regarding the War on Terror: the military tribunal.  Per the Washington Post:

President Obama signed an executive order Monday that will create a formal system of indefinite detention for those held at the U.S. military prison at Guantanamo Bay, Cuba, who continue to pose a significant threat to national security. The administration also said it will start new military commission trials for detainees there.
The announcements, coming more than two years after Obama vowed in another executive order to close the detention center, all but cements Guantanamo Bay's continuing role in U.S. counterterrorism policy.
Administration officials said the president is still committed to closing the prison, although he made no mention of that goal in a short statement Monday. The administration's original plans to create a detention center in the United States and prosecute some detainees in federal court have all but collapsed in the face of bipartisan congressional opposition.
The executive order recognizes the reality that some Guantanamo Bay detainees will remain in U.S. custody for many years, if not for life. The new system allows them the prospect of successfully arguing in the future that they should be released because they do not pose a threat.
"Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions and ensure the humane treatment of detainees," Obama said in statement. "I strongly believe that the American system of justice is a key part of our arsenal in the war against al-Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system - including [federal] Article III Courts - to ensure that our security and our values are strengthened."

When discussing the Gitmo problem, it is important to take care to be as nuanced as the problem itself.  Many pundits on the Left and Right want to throw Gitmo, Federal Courts, and Military Tribunals into neat little boxes that comport with their political ideology.  For example, as we discussed in a previous post, those on the Right are operating under the myth that trying terrorist suspects in military tribunals is somehow "better" for America than attempting to do the same in Federal Courts, even though the facts clearly demonstrate that the opposite is true.  On the other hand, those on the Left are operating under the misunderstanding that closing Gitmo is as easy as 1-2-3, as if the actions (not to mention the intelligence briefings) of the previous administration have no bearing on the actions of the current administration.  Therefore, as with most things in life, the answers we seek lie somewhere in the mucky, messy middle ground where ideologues are scared to look.

I have to admit, when I first heard about this move by Obama to re-open the military tribunals at Gitmo I was pissed for a number of reasons.  For starters, it CLEARLY goes against his 2008 campaign promise to close Gitmo and his 2009 Executive Order regarding the same.  But more importantly, I knew that, invariably, the pundits on the Right will use this as proof-positive that they were right all along about torture, military tribunals, the whole ball of wax.  So let's be clear about what this Executive Order is and what it is not.

This executive order is NOT a concession on torture. Period.

At all times throughout our history as a nation, torture has been recognized as both morally wrong and legally wrong (see the 8th Amendment).  So anybody on Fox News who would now claim that Obama is in favor of the Bush-Cheney methods of torturing terrorist suspects has, indeed, missed the nuance of what this Executive Order signifies.  Moreover, the Executive Order does not concede on the importance of using Federal Courts (aka "Article III Courts") in the war on terror. ("Article III" is a reference to Article III of the Constitution which defines the Judicial branch)  So again, any pundit claiming that the Obama Administration has abandoned the policy of trying terrorist suspects in federal courts has likewise missed the point.

What this Executive Order does concede is that apparently the Executive Branch of our government cannot single-handedly close Gitmo in today's political climate.  As you might recall, during Obama's first week in office he signed an Executive Order to close Gitmo and to start moving the few hundred detainees that were imprisoned there into the federal court system.   And then what happened?  Everybody and their kid brother (including Republicans AND Democrats) started hitting the panic buttons.  All of a sudden, Americans got cold feet when faced with the prospect that a terrorist might actually face trial in a courtroom within their own state...even if that courtroom was heavily guarded with armed personnel and happened to be over 100 miles away from where they happened to live.  Congressmen and women, Senators, Governors and Mayors alike, one by one, all refused to let the trials happen in their backyard.   Meanwhile, the remaining 172 Gitmo detainees were left to hang in legal-limbo, some having never been so much as charged with a crime.

So when we consider this latest move by the Obama Administration to restart the military tribunals at Gitmo, we must consider it within this full context.  Although he is clearly breaking a campaign promise by doing so, Obama appears to be making an attempt here to move these detainees along through the American criminal justice system, whether that system takes place at Gitmo or within the continental United States.  Given the overly-politicized nature of this issue, it is difficult to see if even this latest concession will move the ball any further down the field than it was before.

Did Obama cave to the Right here?
Is there any way to bring the Gitmo detainees to justice given the political environment of this country?
What should happen to the detainees that the Administration says that it cannot try in either Military Tribunals or Federal Courts?  If your answer is to hold them indefinitely without trial, how do you square that with our Constitution?
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