Even though they were telegraphed some time ago, two decisions by President Obama on Monday are a dismaying sign that he is largely perpetuating the status quo at Guantanamo. To the satisfaction of his critics, he has revived the use of military commissions to try detainees and authorized the preventive detention of dozens who will have inadequate opportunity to challenge their confinement.
Obama has said before that he believes some detainees might have to be tried by military commissions, a position that has undermined his determination to try “high value” detainees in civilian courts in the United States. But Monday’s announcement raises the possibility that high-value detainees will also be tried before a commission at Guantanamo.
To be fair, the latest iteration of the military commissions, approved by Congress in 2009, provides more due process than the panels created during the George W. Bush administration. But the problem with the military commissions is as much symbolic as it is substantive. Like Guantanamo itself, a trial before a military body will be perceived as illegitimate throughout much of the world. Better to try all defendants in civilian courts, which have an impressive record in handling terrorism prosecutions.
The president says he still prefers trials in civilian courts whenever possible and will utilize “all aspects of our justice system.” We hope that prosecutions in civilian courts will be the rule and not the exception.
The second action taken by Obama established procedures for dealing with detainees the government has determined cannot be released — at least 48 of them, according to a report by a government task force — along with others who have been referred for prosecution but haven’t yet been charged. We have accepted that a small number of detainees are probably so dangerous that they should be held indefinitely under the laws of war. But we also have advocated a fair procedure to determine whether they pose a danger to the United States, one that provides continuing evaluation.
Overshadowing these announcements is the future of Guantanamo, which Obama famously promised to close. Technically, nothing the president did on Monday prevents shutting down the facility. But military commissions, as opposed to civilian trials, will be held at Guantanamo, and the evaluation system for allegedly dangerous detainees is uncomfortably like the tribunals used by the Bush administration to determine if detainees were enemy combatants. Having made these concessions, Obama will find it hard to argue that he really wants Guantanamo to be closed.