Beyond Guantanamo

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President Obama’s promise to end the injustices summed up in the term “Guantanamo” may go unfulfilled, partly because of his own specious second thoughts and partly because of opposition from members of Congress, including Democrats. Obama should use a speech today on detainee policy to rededicate himself to sweeping reforms and to challenge a timorous Congress to support him.

Last week, the president announced that he would continue -- with improvements -- the military commissions created during the Bush administration to try suspected terrorists held at Guantanamo Bay. The commissions weren’t the kangaroo courts depicted by some detractors; witness the decision of a military jury to acquit Osama bin Laden’s driver of the most serious charges against him. Still, they fell significantly short of civilian standards of due process. Beyond their specific shortcomings, the commissions are inextricably associated in the eyes of the world with the abuse of detainees not only there but in Afghanistan and at the CIA’s overseas “black sites.”

To be fair, Obama has indicated that some prosecutions will take place in civilian federal courts, and the changes he has announced for commissions are meaningful. For example, prosecutors aren’t allowed to use incriminating statements obtained “using cruel, inhuman and degrading interrogation methods,” and new limits will be placed on hearsay evidence. Yet these and other improvements can’t alter the image and the reality of second-class justice.


Supporters of commissions argue that civilian courts are unsuited to trying acts of terrorism, yet several defendants -- including Jose Padilla and self-proclaimed 9/11 conspirator Zacarias Moussaoui -- pleaded guilty or were convicted in civilian courts. As for the argument that convictions in court would be impossible because of the inadmissibility of coerced confessions, similar restrictions would apply under Obama’s reforms.

Obama should use a speech today at the National Archives to make it clear that most, if not all, charges against suspected terrorists will be prosecuted in federal court. He also needs to rebuke the Senate for refusing to fund the closing of Guantanamo out of a fear that some detainees would be released -- or even imprisoned -- in this country.

Whatever rules are adopted for terrorism trials, a relative handful of the 220 remaining detainees at Guantanamo have been charged with crimes. They could remain there indefinitely if they aren’t accepted by other countries, which are likelier to balk if the United States won’t do its part to make good on Obama’s promises.