Obama Returns to Bush Era on Guantanamo

Two distressing pieces of news
emerged last week regarding the Obama administration's plans to close
Guantanamo, and both were delivered by Defense Secretary Robert Gates
in testimony to the Senate Appropriations Committee.

Two distressing pieces of news
emerged last week regarding the Obama administration's plans to close
Guantanamo, and both were delivered by Defense Secretary Robert Gates
in testimony to the Senate Appropriations Committee.

Discussing what would happen to the remaining 241 prisoners, Gates announced
that the question was "still open" as to what the government should do
with "the 50 to 100 - probably in that ballpark - who we cannot release
and cannot try." He also announced that the much-criticized military
commission trial system, suspended for four months by Barack Obama on
his first day in office, was "still very much on the table."

Both admissions indicate that when
it comes to Guantanamo, it is beginning to appear that the much-vaunted
change promised by Barack Obama on the campaign trail has actually
involved nothing more than imposing a closing date on Guantanamo while maintaining the Bush administration's approach to the men still held there.

Back in Bush's day, for example,
those "who we cannot release and cannot try" were sometimes referred to
as those who were "too dangerous to release but not guilty enough to
prosecute" - essentially because the supposed evidence against them was
the fruit of torture or other abuse.

As someone who has studied the story
of Guantanamo and its prisoners in detail over the last three years,
I'm aware that much of the information compiled by the Bush
administration for use against the prisoners at Guantanamo was obtained
through torture or coercion and is, therefore, unreliable, and that
other, equally unreliable information was secured through the bribery
of other prisoners.

As a National Journal
investigation revealed in 2006, one prisoner, described by the FBI as a
notorious liar, made false allegations against 60 prisoners in
Guantanamo in exchange for more favorable treatment, and in February
this year the Washington Post
published the sobering tale of another informant, whose copious
confessions should have set alarm bells ringing. In both cases,
however, there is no indication that the officials responsible for
compiling the information examined by the president's review team have
acknowledged that a substantial number of allegations against the
prisoners are actually worthless.

Moreover, the defense secretary's
talk of 50 to 100 suspicious prisoners (above and beyond those regarded
as demonstrably dangerous) is at odds with repeated intelligence
assessments reported over the years, which have indicated that the
total number of prisoners with any meaningful connection to
international terrorism is between 35 and 50. To this should be added the recent revelation
by Lawrence Wilkerson, Colin Powell's chief of staff, that "no more
than a dozen or two of the detainees" held in Guantanamo ever had any
worthwhile intelligence.

In addition, the defense secretary's
talk of reviving the military commissions is a distressing development
for the many critics of the novel trial system invented by Dick Cheney and David Addington,
who hoped that the administration would resist all calls to reinstate
them, and would, instead, move the relatively few prisoners regarded as
genuinely dangerous to the mainland to face trials in federal court.

However, on Saturday, after speaking to Obama administration officials, the New York Times
reported that, despite declaring that, as president, he would "reject
the Military Commissions Act," and stating that "by any measure our
system of trying detainees has been an enormous failure," President
Obama was indeed considering reviving the commissions.

As the Times described it,

lawyers have become concerned that they would face significant
obstacles to trying some terrorism suspects in federal courts. Judges
might make it difficult to prosecute detainees who were subjected to
brutal treatment or for prosecutors to use hearsay evidence gathered by
intelligence agencies.

As a result, they said,
decision-makers were considering whether to tinker with the rules
regarding the use of coercive interrogations and hearsay, in what the Times
described as "walk[ing] a tightrope of granting the suspects more
rights yet stopping short of affording them the rights available to
defendants in American courts."

The "tightrope" analogy, though apt,
is also something of an understatement. Almost universally derided in
their seven-year history, the commissions demonstrated, above all, that
inventing a legal system from scratch was a poor substitute for
respecting the laws which have served the Republic well for over 200

Nor can it be claimed that the
federal court system is incapable of dealing with terrorism cases. As
was explained in a 2008 report by Human Rights First, "In Pursuit of
Justice: Prosecuting Terrorism Cases in the Federal Courts" (PDF), over 100 terrorism cases have been prosecuted successfully in the federal courts in the last 15 years.

Moreover, last Thursday, as Robert
Gates was telling the Senate that the military commissions were still
"on the table," the Justice Department was taking a very different line
in the case of Ali al-Marri,
a legal U.S. resident who was held in extreme isolation for nearly six
years without charge or trial as an "enemy combatant" in a U.S. naval
brig, until he was returned to the federal justice system by the Obama

As al-Marri accepted a plea agreement and admitted that he had been sent to the United States as an al-Qaeda "sleeper agent," Attorney General Eric Holder announced
that the result "reflects what we can achieve when we have faith in our
criminal justice system and are unwavering in our commitment to the
values upon which this nation was founded and the rule of law."

To remove the stain that Guantanamo
has left on the reputation of the United States as a nation founded on
the rule of law, Mr. Holder's words should be repeated to him every
time that the administration attempts to turn back the clock to the
days of George W. Bush, with its dangerous talk of finding new ways to
justify holding prisoners without charge or trial and its willingness
to revive a trial system despised as nothing more than a "kangaroo

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