War on Terror Newsflash: Guantanamo Stays Open, Military Tribunals Resume

A day after President Obama's reversal on the release of photographs of detainee abuse, his Administration made another concession to critics in Congress and the media. Three administration officials spread the word that Guantanamo Bay military tribunals will be resumed for some detainees.

Obama had suspended the tribunals in January, days after he promised the closure of Guantanamo within a year. The two issues are linked: Obama's intention was to put some detainees through the American criminal courts. This in turn meant imprisoning them in the US, rather than on the edge of Cuba. (Other detainees would not be tried but would be sent to "third countries".)



As soon as Obama issued the announcement, critics --- especially former Bush officials and legislators, "experts", and media who had backed the Bush Administration --- lined up to blast the softness of the President. From within the Administration, some military and civilian officials in the Pentagon leaked tales of detainees who would return to terrorism. In the last two weeks, accompanying the even louder blast against the claims of Bush-era torture, the criticism escalated, with Republican Congressmen declaring that no Guantanamo detainee would step foot on US soil. Yesterday, Attorney General Eric Holder effectively surrendered to a Senate committee, when he said about cases in which a detainee was acquitted:

We are not going to do anything that will endanger the American people. If there were a sufficient basis to conclude they pose a danger to the United States, we would not release them.

The immediate effrect of the decision is to rule out any possibility of due process. The military commissions were a belated "quick fix" when the Bush Administration, which had not intended to do anything with detainees except interrogate them and hold them in perpetuity, had to give some appearance of justice. By the time they put this in practice, however, detainee's files were lost or in a state beyond recovery, lawyers had been denied (and, in some cases, would continue to be denied) access to their clients, and evidence against the accused had been obtained in some cases through "enhanced interrogation".

The Obama officials said that there will be "expanded due-process rights", but this may be a case of putting the genie back in the bottle. Evidence has already been tainted, either because it has not been collected and maintained properly or because it has been obtained under duress. Unless all of that is thrown out by the tribunals (which in some instances means the collapse of the cases), then this is just a nicer face on a dubious system.

However, for the vast majority of the detainees (only a few have been brought before the tribunals), the significance is that they stay in Guantanamo. Difficulties had already stalled the plan to send at least 60 of the 240 to countries in Europe, and the whipped-up outcry about terrorists being let loose in the US has blocked that option. There may be individual releases back to home countries (Canada is now under a court order to take Omar Khadr, imprisoned seven years ago when he was 15), but that will be the extent of the grand intention announced by the President in January.

But maybe the most significance effect of the second  Administration "shift" in two days --- if you put emphasis on domestic politics rather than justice --- is the exposed weakness of the White House. While Obama had (impressively) won political victories in his first months on the economy and on some foreign policy issues like Iran, his critics will now take away the lesson that, if you hit this President with the "national security" club, he will buckle.

That has repercussions not only for the legacy issues of the Bush War on Terror but on Obama's new conflicts. He has another running battle on his hands with some US military leaders, who will keep poking at policy on Afghanistan and Pakistan to shape it to their vision of counter-insurgency rather than the President's. Expect their allies in media, if not the commanders themselves, to ramp up a public vigilance on any perceived Obama mis-steps in the new American wars.

I may be mistaken, for there could be an Administration cunning plan here to put a few high-profile detainees before the tribunals, get the required convictions and sentences, and then --- having bought time --- return to the original scheme to place most of the not-so-dangerous detainees in other countries, if not the US. Khalid Sheikh Mohammed would be the first showcase: the planner of 9-11 and four others pled guilty in December, and most Americans won't care about due process in his trial.

At best, however, this means that Guantanamo stays open indefinitely and those detainees who aren't KSM are kept in the limbo that they have enjoyed for seven years. More likely, the Administration hasn't even thought this far ahead and is simply scrambling for time. And time means little unless you can find the strength to hold your line when you come under pressure.