During American President Barack Obama’s 2008 campaign, a main promise he made — one of the significant ways he would distance himself from George W. Bush’s regime — was to close the Guantánamo Bay detention facility. To deal with detainees still awaiting trial, Obama planned to move them to the United States mainland where they would be tried in civilian court. Earlier this week, U.S. Attorney General Eric Holder announced that the self-described mastermind of the Sept. 11, 2001 attacks, Khalid Sheikh Mohammed, wouldn’t be tried in civilian court as the administration had planned. Mohammed and four other detainees will be tried at Guantánamo Bay. While this decision is disappointing, it also presents Obama with an opportunity to reform the legal process.
Until recently, Obama was determined to try some of the detainees in civilian court. When he signed the Defence Authorization Bill last January — a bill which prevents Guantánamo detainees from being transferred elsewhere — he objected to many of the clauses and expressed his desire to repeal them. His administration stands alone politically — most members of Congress (including many Democrats) are opposed to trying the detainees in civilian court, as are most politicians in the three states where the Sept. 11 attacks occurred. They fear the costs will be high and security difficult to maintain. A civilian trial would have to occur in New York state, the District of Columbia or Virginia.
The lack of congressional support and the limited political support in the three states gives Obama little chance of repealing the Defense Authorization Bill soon. While Obama couldn’t have predicted losing the House of Representatives to the Republicans last November, he failed to outline from the beginning his plan for handling detainees. Obama knew from the start that some of those being held might never be tried because there’s insufficient evidence to convict them, but they can’t be released, because they still pose a serious security risk. Other cases, including Mohammed’s, present tough questions: the administration wants Mohammed to be put to death and he has agreed to plead guilty, but there is no case law for the tribunals, so there are doubts about the legitimacy of the process.
A decade after 9/11, people are demanding that the accused be brought to justice. While Obama is disappointed about having to try the detainees in Guantánamo Bay instead of civilian court, he still has the opportunity to continue improvement of the detention facility. Since taking over from Bush, Obama has made worthwhile changes regarding the process. There are now fewer than 200 detainees at the base (775 have been processed since 2001), journalists are now permitted into the base and there haven’t been any serious reports of abuse in the past two years.
More can be done. Obama can now proceed with the knowledge that, regardless of whether or not he wants to keep Guantánamo open, he can make the tribunal process much more transparent. Trials for those who are going to be tried should begin only once the process is clear. Judges running the tribunals are often unsure of the limits of their power, as well as what outcomes are permissible. Clear rules must also be put in place to deal with future suspected terrorists who are brought to the facility — Guantánamo Bay won’t become a model for justice anytime soon, but the legal standards established over the last two years are in the right direction.
For Obama and many Americans, the situation is still fraught with problems. But rather than treating this as another setback to negotiate with congress, Obama should accept the situation and establish something closer to a just system.
. . Gauntlet Editorial Board