Obama’s Guantanamo policy rings a bell


President Obama began the year with a pledge to close the Guantanamo prison, and to restore due process and the core constitutional values that he said “made this country great.”

But his administration has set out a multi-pronged legal policy for the remaining Guantanamo prisoners that bears a striking similarity to that of the final year of George W. Bush’s presidency.

Some detainees could be held indefinitely without being charged, if they’re deemed impossible to prosecute but too dangerous to release. Congress gave the president that power after the Sept. 11 attacks, according to the Bush and now the Obama administrations. Bush used that authority to capture and imprison people he determined were a danger to the nation.

Nearly eight years after the first prisoners were shipped to the Guantanamo naval base in Cuba, the U.S. government still hasn’t settled on a clear legal framework for handling them. Are they military prisoners in the war on terrorism? Or are they criminals who plotted to kill Americans?

Under Obama’s emerging approach, the answer appears to be some of both.

The Obama administration says its emerging legal policy has distinct differences from the Bush administration’s, in part because the president embraces only the authority bestowed by Congress while Bush also cited an inherent “commander in chief” power.

Obama explicitly supports the habeas corpus review right -- the right to challenge detention in court -- that Bush opposed. His administration will try some Guantanamo detainees in federal court, a move that’s also a radical departure from Bush.

Still, the White House decision to leave open the possibility of indefinite detention arguably goes to the heart of the civil liberties critique of Bush’s policies.

Obama’s announcement last week that he plans to transfer some of the Guantanamo prisoners to Illinois was denounced from the left and the right. Civil libertarians accused Obama of creating “Gitmo North,” because most of the inmates might still be imprisoned without charges.

“Shutting down Guantanamo will be nothing more than a symbolic gesture if we continue its lawless policies onshore,” said ACLU Executive Director Anthony Romero.

Conservatives said the transfer could permit foreign inmates now held as war prisoners to claim new legal rights on American soil. They can use the courts “to avoid conviction and even file civil suits against American officials,” said Rep. Lamar Smith (R-Texas).

But the White House says it has reached a comfortable middle ground, upholding long-standing American principles while protecting citizens at home and abroad.

Guantanamo detainees aren’t just being transferred, said one administration official.

“They’re being brought into a system that has transparency, congressional authority and judicial review,” he said.

The legal divide over Guantanamo -- between the law of war and traditional criminal law -- goes back to fall 2001. Within months after launching the war in Afghanistan, the U.S. military had taken a large number of captives.

Hundreds were flown to Guantanamo to be held and questioned about their links to Al Qaeda.

Prisoners of war can be held, without charges, until the war ends. However, the Constitution says “no person shall be deprived of liberty without due process of law.” Under that standard, no one can be kept in prison unless without being charged with a crime.

President Bush insisted that he, as commander in chief, and his military commanders could run the camp as a war prison, without interference from the law or judges. But civil libertarians fought him in the courts and won at least some rights for these prisoners in the Supreme Court.

For its part, the high court has been none too clear on how to treat Guantanamo’s prisoners. In a series of 5-4 rulings, the justices rejected Bush’s go-it-alone approach and said the Guantanamo prisoners had the right of habeas corpus. But having decided the prisoners could go to court, the justices did not decide what law applied to them.

“Our opinion does not address the content of the law that governs [their] detention. That is a matter yet to be determined,” the court said in its 2008 ruling on Guantanamo.

When President Obama took office, he vowed not only to close Guantanamo but to “construct a legitimate legal framework” for the remaining prisoners. Initially, Obama’s team hoped other nations would agree to take most of the prisoners.

After many nations hesitated, the new administration struggled to decide what constitutional and legal standards should apply to the more than 200 detainees who remained.

Unwilling to call them prisoners of war and unable to try them all as criminals, Obama and his lawyers opted for a split decision.

They decided to try five high-profile prisoners, including alleged Sept. 11 mastermind Khalid Shaikh Mohammed, in a criminal trial in New York. And last week, the administration said most of the rest would be shipped to Illinois.

As evidence that Obama is committed to a fairer system, aides cite his October signature on legislation reforming the military commissions and his intent to begin trying detainees.

Also, 18 detainees who couldn’t be repatriated have been relocated to seven other nations, according to the State Department. Over the weekend, another 12 prisoners were sent home to Afghanistan, Yemen and Somaliland, the Justice Department announced Sunday.

To hold the detainees who are not being tried, Obama relies on the Authorization for the Use of Military Force passed by Congress in the wake of the Sept. 11 attacks, according to a memo describing the legal argument prepared by the Defense Department for members of the Illinois delegation in Congress.

In addition, Obama has added a backup layer to the system that reviews the status of every detainee, going beyond judicial review to a periodic review by the executive branch, according to the memo.

Staffed by more than 60 attorneys and analysts from across the federal government, Obama’s review panel has already done a preliminary examination of all Guantanamo cases and plans to make final decisions about disposition by early next year, the Pentagon document says.

At the moment, the category of inmates who can’t be prosecuted and can’t be released is empty -- “a null set,” in the words of one official -- though there’s little doubt the administration expects that to change. The White House is asking Congress to change federal law to allow detainees to be transported from Cuba to Illinois for that purpose.

“If we have to detain any without trial,” said the senior administration official, “we will only do so as a last resort.”