Executive Orders and National Headaches

Earlier today President Obama signed a series of executive orders pertaining to the country’s anti-terror detention network. He has directed that the Guantanamo facility be closed within the year, as well as a multi-agency review of each prisoner's case to determine who can safely be released to third countries, which cases can be referred for trial in U.S. federal court and which cases require some other disposition.

Throughout the transition process, Obama indicated that he understood the security and logistical challenges facing a successful closure of Guantanamo. Now that it appears to be a political reality, it’s worth asking: what’s the problem with Guantanamo anyway?

Currently residing in the detention facility are nearly 250 prisoners, the vast majority of which are legitimate enemy combatants who pose an acute danger to our nation’s armed forces and citizens. It’s now the job of the Attorney General and ‘multi-agency reviewers’ to repatriate as many of them as possible. It’s been reported that 60 cleared detainees are staying in U.S. judicial hands for fear of persecution following release. Without the luxury of a remote naval base with advanced and robust defense capabilities to house them away from domestic shores, any mainland facility would instantly increase the probability of terror attacks by providing an all-too-sensible target. The benefits (putting the name ‘Guantanamo’ out of our collective conscience) would be immaterial, and the costs could be fatal.

Reworking the prosecution framework makes the detainee’s housing problem look like a walk through Maple Street Park in July. The Military Commissions Act built a clear and sophisticated piece of jurisdictional infrastructure geared towards the attainment of an all-important balance between our general legal principles and security interests. This may be doomed to collapse now that detainees will have their day in U.S. federal court. Many prisoners have been detained as a result of gathered intelligence that determined them to be too dangerous to do anything else with, despite the fact that a crime was not in actuality committed. They will be released. Further, under current law and disposition, conviction with the evidence gathered on the battlefield (minus that which is not adequate due to Miranda violations) will always be an uphill battle.

Making the rounds in Obama circles is the possibility of creating a special court presided over by federal judges for the purpose of supervising detentions and administering trials. The court would “operate under rules of evidence and classification that would allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions.”

Now that sounds like a good idea. It would be all the more impressive if it didn’t turn out exactly the same, in purpose and form, as the military commissions developed by Congress and the Bush Administration in 2006. It’s becoming increasingly obvious, amid all the backslapping associated with Obama’s first steps towards closing Guantanamo, that the commissions we’ve had in place were well designed and necessary. There is virtue to Guantanamo as it sits today. Perhaps we could deal with a shallow bit of politicking on the part of President Obama if Bush’s policies are recycled with a new nametag and spit shine. A continuation of his predecessor’s brilliant track record on national security would be a real win for a new President who values his nation’s citizens more than his nation’s image abroad.