Since sweeping into office pledging to undo all the malign results of the Bush administration's brutal and ill-conceived "war on terror," Barack Obama has struggled to make as decisive a point as he did on that first day, when he pledged to close Guantanamo prison within a year, to ban the use of torture, and to ensure that the US military abided by the Geneva Conventions in its treatment of prisoners.

These promises resurface regularly - most recently during his recent bridge-building speech in Egypt - but in reality the torture promise has been tarnished by an unwillingness to appoint an independent prosecutor to investigate the legality of the Bush administration's policies, and doubts have arisen about the treatment of prisoners of war because of the administration's refusal to open up the US prison at Bagram air base in Afghanistan to outside scrutiny.

At Guantanamo, too, Obama has dawdled and sent out mixed messages. The inter-departmental review board that he established to review the Guantanamo cases has moved so slowly that only two prisoners were released in the first four months of the new administration, and a spate of releases this week - a Chadian who was just 14 years old when he was seized, an Iraqi, and four Uighurs who were sent to Bermuda - seems to have been prompted more by the recent suicide of Muhammad Salih, a Yemeni prisoner, than by a desire to empty the prison as soon as possible.

In particular, Obama's refusal to allow the Uighurs (Muslims from China, who last year managed to persuade the Bush administration that they were not "enemy combatants") to settle in the US, as ordered by a judge last October, has shown that he is susceptible to fear-mongering by politicians, and has also hindered efforts to persuade European countries to accept other prisoners cleared for release, who, like the Uighurs, cannot be repatriated because of a risk of torture.

However, the most shocking demonstration of Obama's inability, or unwillingness to pursue a single, coherent policy and to draw a clear line between himself and his predecessor concerns his proposals for dealing with the relatively small number of prisoners (probably no more than a few dozen) who will be put forward for trial, and another group regarded as too dangerous to release, but who, according to the administration, will not be charged.

For this first group, Obama has, in one instance, made a clean break from the Bush years, moving Ahmed Khalfan Ghailani, a "high-value detainee" who spent two years in secret CIA prisons before his arrival at Guantanamo in September 2006, to the US mainland to face a trial in a federal court in New York. Ghailani is accused of participating in the 1998 US embassy bombings in Kenya and Tanzania. When the Justice Department announced his transfer to the US, Attorney General Eric Holder also pointed out that the Justice Department has "a long history of ... successfully prosecuting terror suspects through the criminal justice system," and, to prove it, attached a list of successful prosecutions over the last 16 years.

However, at almost the same time that the Justice Department was demonstrating a principled return to the rule of law, The New York Times revealed that a Justice Department task force, looking into the proposed trial of five other "high-value detainees" accused of involvement in the 9/11 attacks, not only recommended trying them in a reworked version of the Military Commission trial system introduced by former Vice President Dick Cheney in November 2001, but also drafted legislation whereby Congress could "clear the way for detainees facing the death penalty to plead guilty without a full trial."

It is disturbing enough that the Obama administration is thinking of reviving the commissions, which were almost universally condemned during their seven-year history, attacked by judges and the government's own military lawyers, and unable to deliver more than three dubious convictions; but to propose reviving the commissions at the same time that the Justice Department was praising the ability of federal courts to successfully prosecute terror suspects is surely a sign of weakness and confusion.

This is, moreover, not the only indication that the Obama administration is struggling to deal coherently with the legacy of the Bush years. Six weeks ago, when the president first floated the idea of reviving the Military Commissions, he also let it be known that he was considering proposing legislation to authorize the "preventive detention" of 50 to 100 of the Guantanamo prisoners who were regarded as too dangerous to release, but against whom there was not sufficient evidence to pursue a trial.

What this means in reality is that the evidence would not stand up in a court, almost certainly because it was extracted through the torture or coerced interrogations of other prisoners. The administration's "preventive detention" proposal is therefore profoundly troubling for a number of reasons: first, because it involves an unacceptable willingness to accept as evidence information obtained through torture or coercion; second, because it reveals double standards, when, on the one hand, the government is prepared to try those prisoners regarded as the most dangerous, but is also prepared to continue holding those regarded as less dangerous without charge or trial; and third, because it indicates that senior officials have missed the whole point of Guantanamo.

When the Bush administration established Guantanamo - and all its other "war on terror" prisons - it was based on the arrogant and lawless presumption that, between the guilty and the innocent lay a third category of prisoner, who could, as Guantanamo has demonstrated for over seven years, be held in a permanent state of "preventive detention" - without charge, without trial, without justice.

It is not to late for Obama to redeem himself, but he needs to shed his fascination with Military Commissions and "preventive detention," or he will enshrine America as a country forever tainted by the lawlessness of the Bush years.

Andy Worthington is a journalist and historian, based in London. He is the author of The Guantanamo Files: The Stories of the 759 Detainees in America's Illegal Prison, the first book to tell the stories of all the detainees in America's illegal prison. For more information, visit his blog here.

 

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