Justice Deferred

Apr 25, 2011 No Comments

By Michael Manset

On January 22, 2009, only two days into his presidency, Barack Obama signed Executive Order 13492, which called for the closure of the Guantanamo Bay detention facilities no later than one year after the signing.  January 22, 2010 came and went, as did January 22, 2011, and yet the detention camps at Guantanamo remain open and occupied by 172 detainees.  In light of this failure and the President’s March 7, 2011 executive order resuming military trials of prisoners, many have questioned if this President, who campaigned on closing Guantanamo and respecting both domestic and international law, has not merely failed to deliver on his promise, but outright betrayed the very principals he advocated before his election.

The detention camps at Guantanamo became controversial very soon after they were established in 2002 to hold detainees captured in the war in Afghanistan.  In December of that year, the Los Angeles Times reported that at least 59 detainees, nearly ten percent of the prisoners in the facility at the time, were deemed of no intelligence value and were slated for repatriation before ultimately being transferred to Guantanamo. Senior military commanders began to fear that many of those in the facility were completely innocent.  The Bush administration abused the legal ambiguity surrounding American jurisdiction over Guantanamo Bay (as it is territory leased from Cuba) and the status of detainees as either criminals or prisoners of war to indefinitely detain many of the prisoners without trial. The detainees would never have been subject to the notorious abuse and “enhanced interrogation techniques,” had they had the rights to receive a civilian trial.

While his major opponents in the primary and general election were also critical of the administration’s policies (though John McCain significantly softened his position in an effort to court mainstream Republicans), Obama was the only major contender in the 2008 race whose campaign focused so much on the issue, with the candidate promising to shut down the prison and emphasizing civilian, not military, trials.

It seemed very early on that Obama might fulfill his campaign pledge.  Not only did he order the closure of the detention facilities and the end of dubious military commissions and “enhanced interrogation techniques,” but he also appointed as his Attorney General Eric Holder, who seemed just as determined to end the legal abuses of the previous administration.

After a few months, however, it became clear that Guantanamo would not be easy to shut down.  Obama’s plan for a quick shutdown of Guantanamo required a review of each detainee’s individual case, but the Bush administration had failed to compile comprehensive files on many, leading to delays as the Justice Department compiled evidence.  It was determined that many prisoners could not be tried because they had been tortured, but were considered far too dangerous to release. Efforts to transfer prisoners to their home countries were often complicated by the refusal of those countries to accept their nationals.  A civilian trial for the mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, stalled because of significant bipartisan opposition to a trial in New York and has now shut down in favor of prosecution before a military commission. Suggestions of moving the remaining prisoners in Guantanamo to maximum security prisons in the United States has been met with similar fear mongering.  This culminated in December of 2010, in which the 2011 National Defense Authorization Act, passed by Congress with large support from both parties, banned the use of Pentagon funds for the transfer of Guantanamo detainees to the United States or other countries, including for trial. Obama signed the legislation despite his original plans, as he was hardly likely to win the same battle with a far more conservative Congress that would take office soon thereafter.

It could perhaps be said, then, that Obama had no other choice than to resume military trials of prisoners, albeit ones subject to regular review and which grant access to legal counsel and other rights that detainees never had access to during the previous administration.  The Obama administration probably considers imperfect justice better than none at all, though it still stands by its ultimate goal of closing Guantanamo and trying its detainees in civilian courts.  For now, however, it seems that the President’s promise, no matter how right or noble, cannot be brought into fruition.

Spring 2011, Final

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