The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself.
Officials said the first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.
Let's review what the Obama administration has done. On their second day, they pronounced that GITMO would close within a year. Subsequently, they suspended all military tribunals there until May 20th. Furthermore, they made an executive order suspending waterboarding and other enhanced interrogation techniques. Since then, they have been cryptic about their future plans with both GITMO itself and the future of most of the detainees there. Then, in the last week, it has been rumored that seven folks of the Chinese terrorist separatist group the Uighers will be released into the U.S. in the next few weeks.
Of course, one of the main reasons that President Obama wanted to close GITMO so badly is that the military tribunals held there were to him, and most liberals, such an affront to human rights. Yet, now it appears that many of these same GITMO detainees will still face military tribunals.
Talk about nuance. Some GITMO detainees will be released into the U.S. Others will face federal prosecutions. Still, others will face the very same military tribunals that Obama, the candidate, condemned. The irony doesn't end there. Here's how the New York Times characterized why some of these folks will still face military tribunals.
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.
In other words, while President Obama has outlawed and condemned enhanced interrogation techniques like waterboarding, he still intends to use the information that we got as a result against some of these prisoners. Since a federal court would never allow such evidence, the administration is now considering using the very same military tribunals he once condemned as candidate.
Of course, the tricky legal issues won't end there. Once these folks are transferred onto U.S. soil and moved into the federal prison system, it won't be that easy not to give them the same rights as other federal inmates. As such, moving them onto American soil but trying them in a secret military tribunal would require the same sort of tortured legal logic that they now accuse the Bush administration of using to justify waterboarding.
The worst part of this for the Obama administration is that ultimately no one will be pleased. Human rights groups won't stand for any of these prisoners being tried in secret military tribunals. Americans don't want these folks to be moved into the continental U.S. They certainly don't want them released into the U.S. like the Uighers. Our image abroad won't improve from a halfway measure. As such, closing GITMO has opened a pandora's box that will only continue to create havoc for him.