President Barack Obama, who was one of the Bush administration’s sharpest critics concerning the military tribunals used to prosecute detainees at the Guantanamo detention facility, may be backing away from his election promise to abolish them.
Last week, a story in the New York Times reported that the Obama administration is now likely to retain the military commission system, but in a modified form. According to the Times, the announcement regarding this stunning about-face could come as early as next week.
“The more they look at it,” one official told The Times, “the more commissions don’t look as bad as they did on Jan. 20.”
As an indication of the high priority the military tribunals had for Obama, he requested on Inauguration Day a 120-day delay of all trials in progress. Two days later, the new president signed an order to close the Guantanamo facility itself within a year. Obama planned to transfer the detainees’ cases to civilian courts in the United States where the prisoners would enjoy the constitutional rights, albeit undeserved, of American citizens.
But the president, who during the election said, once elected, he would “reject the Military Commissions Act,” soon encountered hard, cold reality. In Obama’s case, his second thoughts about closing Guantanamo’s military commission system, which he once termed “an enormous failure”, arose after having reviewed the files of the 241 terrorists still held there.
Most of the remaining prisoners, he discovered, are hard-core al-Qaeda members who are too dangerous to be released. And if tried in a regular American court of law, it is estimated that 50 to 100 of them would be acquitted. The problem Obama failed to understand before making his rash promise is that there is not sufficient evidence to obtain their convictions in civilian courts.
There are also other headaches that would arise from civilian trials in the United States, which would not reflect favourably on the Obama administration. One is that the Guantanamo terrorists, including some involved in the 9/11 attack, would be able to grandstand and promote their cause in the courtroom, since now they would have an audience augmented by television cameras. Under the military system in Guantanamo, the trials are closed to the public and the cameras are absent. Reporters are, however, present in the courtroom.
Other problems concern the possibility of civilian judges throwing out key evidence if they deem it was obtained by questionable methods. Intelligence agencies would also be faced with the nightmarish prospect of having to reveal in public how they got their evidence (secret information is not revealed in open court in the Guantanamo legal system). In a civilian courtroom, terrorists would also take advantage of the legal right guaranteed to American citizens to invoke the Fifth Amendment.
But the biggest problem concerning stateside civilian trials for the Obama administration is what to do with the terrorists if they are acquitted, as surely dozens of them would be. Many of them cannot be returned to their country of origin because they will be tortured and possibly executed. Other countries, including those in Europe, are, with good reason, balking at accepting them, regarding the prisoners primarily as an American problem.
“If the detainees are not dangerous, then I don’t see any problem in the USA taking them in,” said one German politician.
The happiest people in all this would be the acquitted terrorists themselves. Some of the Guantanamo prisoners have openly admitted to their American captors their intention to return to terrorism when released. Other former Guantanamo detainees have already done so. So for those still wanting to kill as many Americans as possible, they would love to be set loose in the United States.
This horrifying scenario of a terrorist attack committed by an acquitted Guantanamo detainee, involving American casualties, is what really is causing Obama to consider reneging on his military tribunal promise. President Obama, after all, wants to protect Americans as much as any previous president. But equally important, such an attack would also destroy his prospects for re-election, to which end he has already directed considerable energy since assuming office last January.
House Democrats also signalled to the administration they do not want any al-Qaeda members in the United States, especially in the areas they represent. After years of stridently criticising the Bush administration about the Guantanamo facility, they refused last week to vote the money to close it. It appears their leader is not the only one worried about re-election.
In order to placate his left-wing base if the military tribunals are retained, Obama will instead probably detract his supporters’ attention by promoting the prosecution of Bush administration officials and advisors responsible for the interrogation methods Democrats now consider illegal. One can also expect Obama’s media allies to downplay his broken promise and run with the hounds after those who helped kept America safe these last eight years.
As for Guntanamo itself, Obama is in line to break another promise, according to former Bush administration advisor Karl Rove. Rove told a University of Miami audience last January that the detention facility would be still open next January because there would be “an uproar” about where to put the prisoners if closed. In other words, Gunatanamo is still a good place to keep al-Qaeda cadre.
But President Obama’s retaining the military tribunals and keeping the Guantanamo open, no matter how deep the disappointment for his leftist supporters, will for some not be as bad as the horrible realization that George W. Bush may have been right all along.