Last year then presidential candidate Barack Obama called the Military Commissions being used to hear the cases of prisoners at Guantanamo Bay “an enormous failure.” Now he is accepting the Bush Administration’s thesis that civilian courts are largely unsuited for the realities of the war on terror. He has decided to preserve a tribunal process that will be identical in every material way to the one favored by Bush.
President Obama is also in agreement with Bush that terror suspects should be viewed as enemy fighters. Other areas of common ground are Obama’s decision to oppose the release of prisoner abuse photographs, supporting the indefinite detention for some detainees, and restoring Military Commissions.
He denounced this “shadow justice system” in 2007 and said civilian courts were the best option. After the Supreme Court’s Boumediene decision gave terrorists habeas corpus rights, Obama laid into the Bush Administration’s “legal black hole” and “dangerously flawed legal approach,” which “undermines the very values we are fighting to defend.” Now Obama has reversed himself.
It will be interesting to watch Deputy Solicitor General Neal Katyal defend the new Military Commissions in court. In 2007 he wrote in “Slate,” “Military commission trials are not ‘equal justice’: For the first time since equality was written into our Constitution, America has created one criminal trial for ‘us’ and one for ‘them.’ Whatever else might be said about the Guantanamo courtroom, it will never symbolize America or what it is about.”
The Military Commissions Act was passed by Congress and it respects our obligations under the Geneva Convention. Congress took this initiative because of its belief that the Constitutional provision guaranteeing habeas corpus does not apply to alien enemy combatants engaged in hostilities against the United States. Provisions in the Act removing habeas corpus does not apply to United States citizens. The Congress then concluded that this law does not conflict with the Constitution.
It is difficult to see how Obama will be able to close the Guantanamo facility by the end of the year as he has promised. Congressional opposition to bringing the prisoners to the United States is also increasing. Senate Republican Leader Mitch McConnell (KY) said Guantanamo Bay was the best venue to try terror suspects. “Given the disruption and potential dangers caused by bringing terror suspects into American communities, the secure, modern courtroom at Guantanamo Bay is the appropriate place for commission proceedings,” McConnell said. The camp still holds 241 inmates from 30 different countries.