Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.As I see it, there are three possible explanations for this. First, that Obama is the same kind of rights-trashing, law-disrespecting monster that Bush was. Second, that Obama is simply hoarding presidential power now that he is president and is reluctant to give up any power that he has a right to exercise. Third, that al Qaeda represents a real threat to the United States, which Obama, now that he has unfettered access to US intelligence agencies, has come to realize and that giving civilian legal protections to the most dangerous detainees does, in fact (as Bush claimed it did) threaten the national security of the country.
It is not clear how many of the remaining 241 detainees are likely to be prosecuted. The four-month suspension of military commission proceedings Mr. Obama ordered is to end May 20. As a result, administration officials are considering whether to ask military judges at Guantánamo for an additional delay. In making such a request, administration lawyers might outline their proposed changes.
In recent days, senior administration officials have hinted publicly that commissions were far from dead, yet offered no specifics and their comments drew little attention. In Congressional testimony on Thursday, Defense Secretary Robert M. Gates said, “The commissions are still very much on the table.”
In a news conference this week, Attorney General Eric H. Holder Jr. emphasized that if the administration did use military commissions, the rules must give detainees “a maximum amount of due process.”But, speaking of detainees whom American officials have accused of involvement in major terrorist plots, Mr. Holder added, “It may be difficult for some of those high-value detainees to be tried in a normal federal court.”
I think we can discard the first possibility without much discussion. The second probably plays some part in this, but any decision to revive military tribunals is most likely a result of the third. Al Qaeda is a serious threat to this country. How much of a threat is certainly up for debate, but when we debate the question we must realize the limits to our knowledge. We do not know how many plots have been foiled, how many al Qaeda cells have been infiltrated, how much the government knows, and how dangerous al Qaeda still is. We can speculate and debate these questions, but we simply cannot know the answers in the same way that our governing officials can.
Since coming to office, Obama has maintained the policy of extraordinary rendition and is now considering the military tribunals which he once voted against as a senator. Perhaps this tells us he's simply a power-coveting politican; but it also might tell us that the threat to our country is a serious one that requires extraordinary measures to combat.