President Barack Obama and the Right to Trial

PrisonPresident Obama’s policy (as of today) with regard to the Guantanamo Bay detention facility seems to me to be summarizable in the following way:

The use of the military prison at Guantanamo Bay has damaged the reputation of the United States around the world. The U.S. has compromised its principles by detaining people there. We can do better. We will try those who we can in the U.S. court system. We will use military tribunals to decide the fate of a select few. We will repatriate certain others, or persuade other nations to detain them in some manner. In the end, I know we will still be left with some individuals who cannot be dealt with in these ways. These are individuals who cannot be tried in our courts due to a lack of conventional evidence and charges, but who we know all the same to be dangerous men. I, as President, will not under any circumstances risk the security of Americans by letting these individuals go free, given their potential to cause great harm. Therefore we will find a way to legally detain them, here in the U.S., in maximum security prisons, for as long as may be necessary.

The above is no attempt to caricature or to mock the president’s policy, but simply an attempt to state it briefly and fairly based on his own recent remarks and those of members of his administration.

I wonder, however, at what point all those who have been calling for the closure of Guantanamo Bay (some since late in 2001) will realize the implications of President Obama’s policy, if and when it is fully realized.

For all the focus on the policies of the diabolical Bush/Cheney Regime, little cognizance seems to be taken of the ways in which the detention of these prisoners at Guantanamo Bay was designed to disturb the legal and constitutional status-quo of ordinary Americans as little as possible (ideally-speaking, not at all). It was done not by concocting a brand new legal regime, but instead by defining who these particular people were, and treating them in a way specific and appropriate to their status. In this way, the aim was to avoid any impingement upon the status and presumed rights of others.

On September 11th, 2001, it was finally recognized that there existed a global network of jihadists who were making war on the United States. Making war is different to committing criminal acts. War is the attempt to damage and destroy a nation — its people, its economy, and its institutions — to the point where that nation is forced to surrender in some form; that is, to accede to the fundamental demands of the aggressor. This is what al-Qaeda and its allies were doing (and continue to do): conducting all-out war as effectively as possible, given their capacities. Therefore, individuals captured fighting on the side of al-Qaeda could not be treated as ordinary criminals. Even if specific crimes could not be proven against an individual caught in this way, he was still a part of a war-making machine and could not simply be set free. To this extent, he was like a prisoner of war. However, he was not fighting for any definable nation; not in any uniform nor under any flag. There was no reciprocal agreement with any entity to follow any convention of war, and indeed al-Qaeda in its tactics completely ignored such conventions. (If al-Qaeda had been a signatory of the Geneva Conventions, it would be in violent violation of them on just about every score.) So these prisoners were not legal combatants in any sense, but they were nevertheless real enemies who were really at war with the United States. Hence came their designation as “illegal enemy combatants.”

As such, they would not be granted all the same rights and privileges that belong to genuine, uniformed, prisoners of war. However, like prisoners of war, they would continue to be detained as necessary until the end of hostilities. This bothered and still bothers many people, naturally, because there’s no way of saying when the end of hostilities will occur. (People ought to remind themselves that the main reason this is true is that we do not know when al-Qaeda and its allies will decide to stop their war on us.)

So, they would be kept in a military detention facility, not located in the United States of America, until such time as individual cases could be dealt with in a more specific way, or until the end of hostilities. (As we know, some individuals, presumably thought to be low-risk, were repatriated and then later discovered to have returned to making war.)

Now comes the administration of President Barack Obama. Very soon after taking office, he announced that Guantanamo Bay would be closed within a year, so keeping a campaign promise and pleasing a political constituency, along with fans around the world (although we don’t know what exactly those fans around the world are doing for the United States in return). It was also made clear that the term “illegal enemy combatant” was being retired to the dust-heap, just like the term “War on Terror” and wearing jackets in the Oval Office. So, President Obama undertakes to deal with what he considers the problem of Guantanamo Bay in the way outlined at the beginning of this piece. This leaves him with certain hard cases who cannot be tried, but who must, according to him, be detained indefinitely. They are not illegal enemy combatants, mind you; they are now just some guys who pose a potential risk to the security of the United States. So, whether with or without the help of the Democratic-controlled Congress, President Obama obviously plans on coming up with some new legal basis to detain people who pose a threat to the security of the United States indefinitely and without trial in maximum security prisons on U.S. soil. It is an unavoidable consequence of his policy, if that policy is actually carried out.

Does this sound like progress to the civil liberties advocates who have wanted Guantanamo Bay closed down all this time? Does it sound like progress to you?

I can attest that it sure doesn’t give me any warm feeling. It seems to me that, if successful, this will actually be substantially more damaging to the presumed constitutional rights of all Americans than the carefully tailored policy to deal with illegal enemy combatants that was instituted by the aforementioned diabolical Bush/Cheney Regime.

There’s never been any doubt that change was on its way with the election of Barack Obama. It’s just that change tends not to unfold in the ways that people expect.