There is no denying that the Obama Administration’s decision to make use of the Bush Administration’s sham military tribunals, announced like many embarrassing policies in the Friday news hole, is a serious disappointment. (For the gory details it’s best, as always, to read Glenn Greenwald.) Candidate Obama spoke unflinchingly against this type of thing, and yet here he is, barely four months into a four year term, nervously embracing some of the stupidest of his predecessor’s policies. More broadly, it fits into a sad pattern of political expediency which has hitherto gone relatively unremarked upon. And make no mistake, this is a political decision.
The safeguards within our legal system (chains of evidence, presumptions of innocence, trials by jury) exist in no small part to keep the authorities in line. The only threat that has any chance of keeping the people in charge following the rules is that of a guilty man going free. When it comes to the prisoners of Bush the Younger’s failed War on Terror, however, those safeguards were arbitrarily removed for more than seven years. The one constant of all the Bush Administration’s legal wrangling over prisoners was their absolute assertion, contra all previous American legal history, that they could hold these men indefinitely. Because they were operating without any fear of acquittals everything else got short shrift, from the messy realities of humanely treating prisoners to the simple bureaucratic necessity of maintaining coherent case files.
That is the mess with which the Obama Administration must contend. Our legal system isn’t set up to have seven year gaps where anything goes followed by a complete return to normalcy and the quagmire bequeathed to them when it comes to Guantanamo is too messy and too complex to be cleaned up without significant political costs. As a result the new Administration is faced with two unpleasant alternatives.
On the side of the angles they can bite the bullet and remand everyone over to civilian courts or regular military trials under the UCMJ. That runs the very real risk that guilty prisoners will go free. Should that happen the fault will lie with the Bush Administration, which in its long and lawless detention created conditions that resulted in the release of guilty men; but the blame will sit squarely on Obama (this is a familiar dynamic for our new President).
The other choice is to try and ram some of these men through the newfangled military tribunal system, where convictions can either be assured or significantly advantaged. This is seen as having a higher likelihood of keeping these men behind lock and key, but it comes at an enormous cost to America’s long term reputation. Obama appears to be betting that he has so much credibility and goodwill right now that no one, save a few cranks in his party and on-line, will really hold it against him. He is probably correct.
Obama has shown a willingness to place political expediency above principal before, witness his naked flip-flop on the FISA bill last summer. It’s a side of his personality which, despite all the scrutiny he has endured the last couple of years, remains widely underappreciated: beneath everything else he is a consummate and masterful politician. All the “Hope” shirts and Shepard Fairey posters in the world cannot change the fact that Obama is a ruthlessly clear eyed political animal.
The principled course of action would be to take these trials back to existing courts, and if there are acquittals then the acquitted should be set free. That is a chance we should be willing to take because, in theory at least, we cannot put a price on our values and our principals; and sticking by them has always benefitted us in the long term. However, an acquittal of someone implicated in American deaths, especially if those deaths occurred in September of 2001, would be a public relations nightmare at the very least. It would also have every opportunity to turn into a full blown political catastrophe for Obama specifically and Democrats in general.
Obama weighed American legal tradition and the human rights of these men against all else that he hopes to accomplish and found the former wanting. It’s as simple as it is sad. One can hope that when he’s got some of his signature proposals behind him, when he feels more secure politically, he’ll remember them. But there are a lot of conditionals in that sentence and it seems a thin hope.
