Obama’s Gitmo problem


Call it the other mess Barack Obama will inherit from George W. Bush.

It is the military tribunal system that the administration set up at Guantanamo Bay to try accused Al Qaeda members and other suspected Islamic terrorists -- and, particularly, the five men in U.S. hands who, by their own admissions, organized and coordinated the Sept. 11 attacks.

When it comes to the economic meltdown that the president-elect will receive from the outgoing incumbent, there are precedents on which to rely -- the historical example of Franklin D. Roosevelt, for example, and the personal experience of those who helped guide the nation out of the deep recessions of the 1980s and early 1990s. When it comes to the Gitmo debacle, however, Obama is pretty much on his own. No president ever has behaved with quite the recklessness Bush has displayed toward basic American concepts of due process, fundamental rights and basic decency -- not to mention the civilized world’s prevailing standards of human rights.

The Constitution may not be a suicide pact, but neither is it a sub-prime promissory note collateralized by the expedient fantasies of desperate politicians.


Consider for a moment what happened in Guantanamo on Monday, when the five 9/11 defendants -- including the apparent mastermind, Khalid Shaikh Mohammed -- announced that they wished to dismiss their appointed military lawyers and to immediately plead guilty.

Start with the fact that the newly installed judge in the case, Army Col. Stephen R. Henley, said that even though the defendants had submitted a written pleading more than a month ago announcing their intention to take precisely this step, he had not had a chance to consider its legal implications because the security arrangements prevented even him from reading any communication from the accused except in a secure location like Guantanamo.

The defendants wrote that they wanted to stop filing any further legal motions and “to announce our confessions to plea in full.”

Let’s get this straight: This tribunal operates under rules that deem an Army colonel appointed to preside over the capital trial of five human beings insufficiently trustworthy to read a pleading from the defendants in all but a guarded physical location. This is a court that is not entered by a door but through a looking glass: Clean cup, clean cup. Move down, move down. Off with their heads.

Henley, meanwhile, has his own perplexities. He isn’t sure whether he can accept the defendants’ guilty pleas because the statute under which these so-called military tribunals are constituted isn’t clear on whether the death sentence can be pronounced on a defendant who pleads guilty rather than being found that way by a jury of military officers.

Imagine a judge presiding over an American court who is uncertain of his discretionary powers under the law. That is the appalling point to which the Bush/Cheney administration’s willful contempt for the Constitution and internal standards of due process has brought us.


Why did administration officials create such an unwieldy, unconstitutional structure? Because they knew full well that trying these defendants in regular courts would present hellish problems; they’ve been tortured, and two of them may have been rendered incompetent to cooperate in their defense, one of them by the administration of psychotropic drugs.

The administration’s arrogance also has created a golden opportunity for these evil men, who are guilty as hell. (Let’s not forget that Mohammed is, by his own admission, not only the organizer of the 9/11 attacks but also the murderer of journalist Daniel Pearl.) Instead of being brought to sober justice, these killers have been handed a chance to present themselves to much of the world as martyrs, victims of a vengeful and -- in international eyes -- lawless America.

There is, in fact, speculation that the five are now seeking to plead guilty because they fear Obama will shut Guantanamo down and try them either in regular federal courts or, perhaps, before tribunals subject to the Uniform Code of Military Justice. In either case, the normal notions of due process, legal rights and judicial precedent would be in force.

The last thing these loathsome characters want is a fair trial. They want to die at the end of one of the Bush/Cheney mockeries of justice so they can win a final victory through what much of the Islamic world will regard as martyrdom -- and much of the rest of the world will regard as distasteful legal barbarism.

It’s not a victory the incoming administration should allow them.