President Obama’s much-hyped pledge to shutter Guantanamo Bay prison by next January took another hit this week, this one self-inflicted.
By Tuesday of this week, two administration-created task forces – the Special Task Force on Interrogation and Transfer Policies and the Detention Policy Task Force – were supposed to have produced reports on the administration’s treatment of terrorist suspects, including the 229 detainees still confined in Guantanamo Bay, setting the stage for the detention facility’s closure in 2010. Instead, the twin task forces asked for a six-month extension to complete their review and released interim memos whose conclusions may make it more likely that Guantanamo will remain open past the president’s increasingly tenuous deadline.
It wasn’t supposed to be this hard to close Guantanamo. On the presidential campaign trail, candidate Obama scored cheap points against the Bush administration by deriding its conduct of the war on terror and promising to put an end to its most famous symbol. In one of his first acts as president-elect, Obama on January 22 signed an executive order requiring Guantanamo Bay to be closed within a year, citing it as proof that his administration had rejected the “false choice between our safety and our ideals.” Under President Obama, America was no longer on the dark side.
Seven months into his first term, the picture is more complicated. One sign of that is the memo released this week by the Detention Policy Task Force. Although the task force was designed in part to chart a post-Guantanamo course for the administration, its conclusions are most striking for their continuity with the policies of the Bush administration.
Nowhere is that more evident than on the sensitive issue of military commissions to try terrorist suspects. During the campaign, Obama referred to the Guantanamo-based trials as “the flawed military commission system,” and urged their replacement by trials in federal courts. The task force climbs down significantly from that promise. Its report states that federal courts “are not always best suited to the task” of prosecuting terrorist suspects and notes that military commissions may be “a more appropriate forum.”
Not only that, but the task force provides a historically grounded defense of the military commissions system, pointing out that “military commissions have been used by the United States to try those who have violated the law of war for more than two centuries. They have been used during World War II, the Philippine Insurrection, the Civil War, and the Mexican war, and precursor tribunals were used even before the founding of the Republic by colonial forces during the Revolutionary War.”
Since this defense of military commissions is bound to invite charges that the Obama administration has merely adopted its predecessor’s approach in a new guise, the task force memo makes a strained attempt to claim that the types of military commissions that the administration supports are different from their incarnation under President Bush. According to the memo, the Bush-era commissions “suffered from a perceived lack of legitimacy” and denied due process rights to detainees. Presumably, the new and reformed military commissions will be something altogether different.
Yet, the Obama administration’s reforms of the military commissions are largely cosmetic. To a striking extent, they retain those features of the Bush commissions – protections for sensitive sources and intelligence; a loser standard of evidence gathering that recognizes the challenges of conducting investigations in the battlefield – that have been used to portray military commissions as unjust in the Bush era.
Military commissions are only a partial solution to the problem of Guantanamo’s inmates. There remains the question of what to do with those detainees who are judged too dangerous to release but cannot be brought to trial due to insufficient evidence. On that point, Obama administration has again opted to follow the Bush administration’s precedent. The Special Task Force on Interrogation revealed this week that “if the prosecution team concludes that prosecution is not feasible in any forum,” it could use some “other appropriate disposition.” Since indefinite detention would seem to be the only other option, the administration seems to have concluded that this Bush administration policy, too, should be continued.
This policy convergence has not exactly pleased the administration’s supporters, who consider both military commissions and indefinite detentions anathema. Activists on the Left are already crying betrayal at the task forces’ findings, with the ACLU’s Anthony Romero accusing the Obama administration of falling into “the same legal swamp that engulfed the Bush administration.”
Meanwhile, the administration’s efforts to shift the blame onto its predecessor have worn thin. Writing in Salon.com, Glenn Greenwald fumes, “From this interim report, it's more apparent than ever that the central excuse made by Obama defenders to justify preventive detention and military commissions -- there are dangerous Terrorists who cannot be released but also cannot be tried because Bush obtained the evidence against them via torture – is an absolute myth.” Indeed, as Greenwald points out, the Obama administration seems intent on keeping these policies in place not only for those terrorist suspects already in custody but also for those who will be captured in the future.
Blog-based outrage notwithstanding, this is a welcome development. What the Left views as perfidy is actually a sign of clarity: As the administration has learned in its brief time in office, self-righteous lecturing about “false choices” is of limited utility in the difficult task of preventing another terrorist attack – a task in which Guantanamo Bay has played no small role. The only mystery is why President Obama still insists on closing Guantanamo when all the evidence – including that offered by his own departments – suggests that it should remain open.