The major missing piece in Obama’s new Gitmo policy

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The major missing piece in Obama’s new Gitmo policy

By Karen J. Greenberg

Wednesday, June 3rd 2009, 9:26 AM

Let's admit it. Even for those of us who consider the Guantanamo Bay detention center a blot on American values, and who wish that a magic wand could solve the problems of closing the facility, President Obama's detention-policy speech was a rational, thoughtful statement. As a result, many of the lawyers and human rights advocates who have thus far been frustrated by the lack of due process for detainees have been able to embrace the President's outlines of a new policy with enthusiasm.

The President deserves credit for erasing one of the primary functions that Guantanamo served - namely, a means of avoiding a national discussion and a national policy on detention. His speech, accordingly, reflected the collective thinking of those who have grappled with the legal quagmire since its start. Rather than reject the variety of options on the table, Obama assented to them all: Military commissions, federal courts, transfer to home and third countries, release on the grounds of not posing a danger to the U.S., and, last but not least, preventive detention. He laid out these five categories of Guantanamo detainee and suggested that we will - based primarily on pragmatic considerations - decide who falls into which box, then deal with each case accordingly.

But there's one hitch, and it's a huge one. As opposed to his candor on how he intends to fix the legacy he inherited, Obama was essentially silent on his policy for the future.

Many Guantanamo critics, grateful to be finally taken seriously by the new President, have decided not to worry about this piece of the puzzle for the moment. But in refusing to make this distinction clearly, the President - who is otherwise a master of parsing - is sidestepping the larger question that he purportedly set out to address.

Nowhere is the need for a reckoning more pressing than in the matter of preventive detention. This is, at its core, precisely what the prison at Guantanamo has been about all these years. And it is the idea of indefinitely holding those who cannot be proven to be terrorists but who the government asserts are threats that makes many of us so uncomfortable.

Obama acknowledged that some of the men currently being held in the offshore facility are very dangerous but, for practical reasons, cannot be tried. This is a politically courageous statement, given that many in Obama's political base reject this suggestion. It is also a simple statement of fact.

But when shifted to a question of principle - about what Obama would do, rather than what he is forced to do because of the terrible hand he has been dealt - we enter murk and muddle. What about a member of Al Qaeda captured in Afghanistan today or tomorrow? What if he is found on a battlefield, then held somewhere for questioning? What will an Obama-led Defense Department or CIA do then?

Is the President's suggestion that we need "clear, defensible and lawful standards" for defining who falls in this category a way of hinting that he will, in fact, assert the future right to hold new detainees indefinitely without formal charges? This is the precise right the Bush administration asserted.

If Obama had stated that preventive detention would not apply to anyone apprehended going forward, he would have offered a decisive - not to mention, for people like me, more acceptable - policy directive. The fact that he did not make this distinction cannot help but make one wonder whether the remedies created to address the unfortunate and unacceptable baggage of the Bush years may carry over into his own era. If that is the case, we might well ask ourselves, what other good intentions might choose to hide behind a legacy that begs for closure?

It is one thing to say that the new administration has inherited a "mess" and that unpalatable, difficult and unappealing decisions must now be made to clean up that mess. It is another to assert that a future policy will be based on those same ideals.

Opponents of American policy in Guantanamo can accept the first contention. Hopefully, we will not be forced to come to terms with the second.

Greenberg is author of "The Least Worst Place: Guantanamo's First 100 Days."


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