Obama, the Guantanamo Detainees, and the Limits of Power

The Associated Press is reporting that President-elect Obama is planning on closing the US detention facility at Guantanamo Bay and moving most of the prisoners currently held there to the US for trial in the civilian justice system. On face, such a move would square with campaign promises made by Obama, and holds out the prospect of ending one of the primary causes in the global increase in anti-Americanism.

Unfortunately, and not suprisingly, the picture is much more complicated than this. Closing Guantanamo may bring an end to a symbol, but closing the base in and of itself doesn't do anything to resolve the fates of the hundreds of prisoners inside. Obama plans to release many of least-problematic detainees, and to move many of the others inside of the US and subject them to criminal prosecution in the civilian courts.

But what about the most dangerous? According to the AP, "A third group of detainees — the ones whose cases are most entangled in highly classified information — might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans aren't final."

I have no problem with creating a special terrorism court, parallel to the regualar civilian courts, that would be empowered to hear special cases involving highly classified material and using different evidentiary rules. But make no mistake about it. These courts would be more like military tribunals than like "regular" courts. The ACLU and other opponents have already voiced their opposition to Obama's plan:

"I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake," said Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees. "We do not need a new court system. The last eight years are a testament to the problems of trying to create
new systems."

...

The tougher challenge will be allaying fears by Democrats who believe the Bush administration's military commissions were a farce and dislike the idea of giving detainees anything less than the full constitutional rights normally enjoyed by everyone on U.S. soil.

"There would be concern about establishing a completely new system," said Rep. Adam Schiff, D-Calif., a member of the House Judiciary Committee and former federal prosecutor who is aware of the discussions in the Obama camp. "And in the sense that establishing a regimen of detention that includes American citizens and foreign nationals that takes place on U.S. soil and departs from the criminal justice system — trying to establish that would be very difficult."

But for the most dangerous detainees, the civilian legal system is not an appropriate venue for trials. "Prosecuting all detainees in federal courts raises a host of problems. Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics." In addition to these problems, evidence seized on battlefields is not likely to have been treated in a manner consistent with civilian evidentiary standards. Hearsay and other probative value evidence might be needed, and the rights due the detained upon capture -- Miranda rights, access to a lawyer -- are different due to the military nature of their detention.

Obama's approach is an eminently sensible one, but it highlights the limits of presidential power. Supporters of Obama like the ACLU are going to be disappointed when President Obama continues to take the war on terror seriously, rather than simply dismantling everything the Bush administration has done. While the Bush policies were wrong in their implementation, they were right in their general direction: the war on terror is not one that can be fought entirely with the tools of the criminal justice system. The threat posed to the nation by terrorists is entirely different than the threat posed by "regular" criminals, as are the rights due to them. President Obama already recognizes this, and while his plan may be better as respecting basic rights than Bush's, it still treats the war on terror as a war in which the rules must be different. Obama may not be Bush, but he will be the President of the United States, and anyone who expects him to simply be Obama and to "do the right thing" is going to be seriously disappointed.