A False Move on Gitmo

Obama’s lofty talk does nothing to resolve detainee situation.

National Review Online
Friday, January 23, 2009

The executive orders President Obama signed Thursday regarding the detention and interrogation of detainees in the War on Terror reflect an emerging Obama style: What is said is more rhetorical than illuminating—and what is most important is left unsaid.

Take Guantanamo Bay, the oft-maligned subject of the first order. In announcing the closure of the prison there, the president forcefully asserted that he was following through on a campaign commitment. But the order only promises that the facility will be closed within a year—a nonbinding deadline Obama could extend simply by signing another order. That’s not exactly the immediate shuttering his antiwar base was clamoring for, and such delay would be intolerable if Obama really believed Gitmo were the travesty he has portrayed it as.

Moreover, the physical facility itself is of only symbolic importance. The underlying question is what to do with the detainees held there. On that, the executive orders tell us precious little.

There are about 245 alien enemy combatants currently in detention. Of these, 21 have been formally accused of war crimes, charges that were to be tried by military commission under Bush policies codified by congressional statutes. With respect to these detainees, the executive orders accomplish exactly nothing.

The military commissions have already been suspended for four months (at Obama’s request, granted by the military court) to allow the new administration to study the system. As a candidate, Obama criticized commission trials for falling short on due-process guarantees, but in truth the governing procedures are rich with defendant protections, and the president has stopped short of explaining what he would do differently.

For now, the broader issue of detention is an area for study rather than action. Obama created a task force that will consider what to do with terrorists captured after Gitmo is closed. And in another show of symbolism over substance, the president directed the CIA to shut down any of the so-called black-site prisons that, with the cooperation of our allies throughout the world, the agency may have been using to hold and question high-level al-Qaeda captives. In reality, it is likely that any such prisoners were transferred to Gitmo long ago. Left unanswered are the salient questions of where the current detainees will be held once Gitmo closes; whether they will be tried and, if so, where; and whether a new system will be designed to adjudicate the legal validity of detention.

Refreshingly, President Obama acknowledges that we are “a nation at war”—a proposition disputed by many of his core supporters, who see Islamist terror as a mere law-enforcement challenge. As a candidate, he railed against indefinite detention and praised the Clinton-era approach of trying terrorists in civilian courts. Now responsible for national security, Obama has come around to the understanding that there are people who, though known to pose grave danger, cannot be tried because our intelligence is not usable in civilian court. So while his administration studies this conundrum, he will continue to hold those detainees indefinitely. And though he will burn up the diplomatic phone lines trying to repatriate them, Obama must realize that other countries are not tripping over themselves to take on the vexing problems he’d like to unload.

On interrogations, a new order instructs all American personnel, including intelligence agencies, to follow guidelines in the Army Field Manual, which proscribes "enhanced" questioning tactics that involve physical abuse, threats, and other forms of coercion. This is obviously a sop to the waterboarding demagogues, who continue to smear the Bush administration as systematic torturers. Again, there is less than meets the eye. Administration spokesmen anonymously concede that Obama could issue another order permitting unspecified enhanced tactics in special cases—and that elements of the intelligence community, mindful that al-Qaeda trains its operatives to resist interrogation, are pressing for exactly such license.

So to summarize: We’d love to close Guantanamo, but we can’t right now; we’d love to transfer detainees out of Guantanamo, but other countries don’t want them; we’d love to give every detainee a civilian trial, but we don’t have enough evidence; we’d love to release the detainees we can’t charge with crimes, but our intelligence tells us they’re dangerous, so doing so would be irresponsible; and we’d love to stick to the highly civilized, detainee-friendly interrogation practices approved by the Army Field Manual, but every now and then there may be an emergency when something more severe is warranted.

Underneath all the lofty rhetoric, we’re gratified to see that this is change George W. Bush could believe in.