Obama is Confused over Terror Trials

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.