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Obama’s Shattered Dream to Kill Gitmo

Posted By Nichole Hungerford On December 23, 2010 @ 12:50 am In FrontPage | 8 Comments


While the public eye was focused on the signing of the “don’t ask, don’t tell” repeal bill, and while the media was regaled at the White House by a special presidential briefing, the Senate passed the National Defense Authorization Act, which included a ban on the transfer of Guantanamo Bay detainees to the U.S. The ban may be a death knell for the administration’s goal to shutter the Guantanamo Bay detention facility, as well as its push for detainee civilian trials. In effect, the Obama administration will be forced into handling captured terrorists in a way that is not appreciably different from the Bush administration. Military commissions will reign, and Guantanamo Bay will be their venue.

Prior to the 2008 presidential election, President Obama had been univocally opposed to the continuing existence of the Guantanamo Bay detention facility, as well as the indefinite detention of terrorists. Although committed to seeing Guantanamo closed, the practicalities of doing so have proven relatively intractable for the president. The closure of the facility is now overdue by almost a full year, despite febrile attempts by the administration to ship detainees to receptive (and bribed) foreign countries, and a renewed emphasis on using the civilian court system. As early as the spring of 2009, the president signaled that indefinite detainment would not be discontinued anytime soon, although he was reportedly “grappling” with the idea at the time. The problem has always been that there are a number of detainees who are too dangerous to release and yet, cannot be tried in the civilian court system with sufficient guarantee of prosecution. In these cases, the administration fears (inter alia) evidentiary taint from “torture” or the inadmissibility of information because it is too sensitive to use in court.

There are approximately 48 Guantanamo prisoners, out of 174 remaining, who fall into this category. The Obama administration has been forced to continue the practice of indefinite detention with these individuals, but the ideal place for detention, as far as the administration is concerned, is in the U.S. In 2009, the administration proposed opening a prison in the president’s home state of Illinois to hold these terrorists (and others awaiting trial). This suggestion received fierce bipartisan condemnation. Another deeply contentious issue has been the unremitting insistence that detainees — most famously Khalid Sheikh Mohammed, the confessed mastermind of the 9/11 attacks — be tried in the civilian court system. These and other issues proved enormous obstacles to the closure of Guantanamo, as legal processing has been less than expeditious, while a viable alternative location has not been forthcoming.

The transfer ban in the defense authorization bill is the proverbial nail in the coffin for civilian trials, the prospect of a domestic prison, and more than likely, for the push to close the detention facility itself. The ban forbids transfer of detainees to the U.S. for any reason, including prosecution. It also expressly prohibits the construction or purchase of a surrogate facility in the U.S. Furthermore, there is virtually no chance that President Obama will exercise his executive authority to veto the bill, as it is one aspect of a general spending bill necessary to fund the Afghanistan War. Thus, the Obama administration is effectively forced to continue military commissions at Guantanamo Bay, continuing operations virtually identically to the Bush administration, with perhaps one small change.

While the defense authorization bill was under consideration, the administration has been quietly working on an executive order to formalized indefinite detention without trial for problematic detainees. Anonymous officials speaking to both The New York Times and The Washington Post said the executive order would create a revised review process, one that was “more adversarial,” like that of a court room. Prisoners would then have the ablity to contest their detainment more vigorously. In addition, White House officials related that “detainees who have lost their habeas [corpus] petition [will have] the prospect of one day ending their time in U.S. custody,” according to The Washington Post. But is this for Guantanamo optics? For prisoner psychology? For the actual possibility of releasing terrorists? From the details we have now, the new plan is concerning.

What is ironic, as The New York Times pointed out, is that many on the Obama team were once critical of the president’s predecessor, President George W. Bush, for being too unilateral with counterterrorism measures. Yet, the plan in the works for indefinite detainees will be enacted through an executive order, the Times presumes, because the administration fears legislation from the Congress would be too “draconian.” If this is true, we should be clear about what this means: the administration is apparently concerned the Congress will be too harsh on captured terrorists, each of whom has a dossier of inculpating evidence showing them to be “too dangerous” to be release. If the administration accepts they are too dangerous, then their guilt and status as fanatical killers has already been established. Why the White House continually goes to such lengths to protect the interests of these individuals, which will in the end amount to agonizing over courtroom procedural minutia, is almost incomprehensible.

Leftist “human rights” groups such as Human Rights Watch and the ACLU are predictably upset with both the transfer ban and the Obama administration’s resignation to indefinite detention. After his first taste of serious criticism from the Left over the Obama-GOP tax deal, which prevented tax hikes for all, even wealthy Americans, Obama seems to be on the cusp of delivering another resounding disappointment to his left-wing base. At this juncture, problematic detainees will likely never be moved from Guantanamo Bay. And military commissions are here to stay. Perhaps for the better.

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