Two years ago today, Barack Obama took the oath of office and announced that his first act as President would be to order the closure of the detention center at Guantanamo Bay. Two days after his inauguration, President Obama signed EO 13492, which actually was his fourth executive act. For the succeeding two years, Obama has insisted that he remains committed to closing Gitmo and transferring its detainees to federal court and stateside facilities.
Now, though, we have … change:
The Obama administration is preparing to increase the use of military commissions to prosecute Guantánamo detainees, an acknowledgment that the prison in Cuba remains open for business after Congress imposed steep new impediments to closing the facility.
Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees.
Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.
Nashiri’s case will be a cause celebre, the Times warns, because of his status as one of three detainees to be waterboarded by the US. That’s why the DoJ had already decided to try him through the commission system anyway; his status has not changed. In fact, Nashiri will face the death penalty at his tribunal, which will ratchet up the pressure on the Pentagon and the White House when his commission begins.
Until now, though, the White House had refused to allow the commissions to start, even for those detainees to which the administration assigned them. They had hoped to close Gitmo first, and then conduct the commissions inside the US. Congress effectively blocked that option by barring the use of federal funds to bring any of the Gitmo detainees to the US for any purpose. At the time, Attorney General Eric Holder claimed that to be an unconstitutional infringement on executive authority, but it appears that the Obama administration has decided against a legal challenge to the Congressional power of the purse.
This quietly-made decision is actually the correct one. The US traditionally has used military tribunals to try war criminals, and the location of the detention facility should be made on the basis of what constitutes the most effective and secure choice. It’s far past time to adjudicate the remaining detainees, all of whom should be put through the commission system instead of Obama’s current plan to hold some without trial indefinitely. That, unfortunately, hasn’t changed:
The administration is also preparing an executive order to create a parole board-like system for periodically reviewing the cases of the nearly 50 detainees who would be held without trial.
If we can have a parole board for the detainees, why not just send them to commissions as well? This looks like an attempt to exhaust patience in Congress and have them agree to civilian trials for the highest-profile detainees, including Khalid Sheikh Mohammed. If commissions are good enough for Nashiri and al-Darbi, then they’re good enough for all of the detainees.