Justice Delayed: This Could Get Interesting

Paul Greenberg
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Posted: Jan 23, 2009 10:21 AM
Justice Delayed: This Could Get Interesting

It took years of wrangling, negotiation, rebuffs and reconsiderations, majority and minority opinions, and general bad feelings. But at last Congress, the courts and the chief executive had come up with a way to redesign the traditional military commissions to deal with the challenge presented by illegal combatants in this new, asymmetrical war on and with terror.

Now, on his first day in the Oval Office, with a stroke of the pen on an executive order, a new president and commander-in-chief has made it clear what he thinks should be done about that whole, long laborious process: Forget it.

The military commissions now have been canceled, or at least suspended. The detention center at Guantanamo will be shut down by presidential order. How simple it all turned out to be.

Too simple. Just closing Guantanamo was always the easy part. That was the goal of the previous administration, too, which sought to achieve it over the years by releasing, relocating, repatriating and generally diminishing the number of prisoners held there -- despite the objections of those crying Rendition!

The now former administration continued to move prisoners out of Gitmo even as some of those released have had to be recaptured on the battlefield or have been caught in new terror plots. See the curious case of Said Ali al-Shihri, a Saudi freed from Guantanamo only to emerge as deputy leader of al-Qaida in Yemen. He's now a suspect in the deadly bombing of the U.S. Embassy there.

By now Guantanamo's prison population has been reduced from 775 to 245. But those detainees who remain include the hardest cases. And governments in their home countries may be too savvy to accept many of them.

How to deal with the ringleaders who freely admit their guilt, and even insist on "martyrdom," at least in their public statements and pleadings? What's to be done with them when there is no offshore prison in which to house them?

Shall the Khalid Sheikh Mohammeds be turned over to ordinary criminal courts in this country, with all rights and privileges appertaining thereto, and the government proceed to stage a whole new series of circus trials like that of Zacarias Moussaoui over the next couple of years or decades? Or shall it seek willing executioners abroad? Or just forget the whole thing and hope for the best? Once Guantanamo is shuttered, what's the country to do about these clear and present dangers?

The Hon. Barack Obama's answer: Nothing. At least for now. Close Guantanamo but not yet. Do it in a year. Our own Mr. Micawber, he seems confident something will turn up. For now his decision can best be described as no decision. Call it justice delayed, which as usual is justice denied. Not just for the prisoners but for the survivors of September 11th, which properly should include the whole country and civilized world.

In place of justice, Counselor and President Obama has granted a continuance. One begins to discern how he perceives his place in presidential history -- not as the great dissenter from the previous administration but the Great Temporizer. When in doubt, order a high-level study, which now is to be undertaken in the cases of the government's most prominent guests at Hotel Gitmo.

Happily, the United States stands on the verge of a strategic victory in Iraq, which finally has a legal government of its own and a status-of-forces treaty that limits American responsibility for terrorists/suspects taken prisoner there. There is no longer a full-scale, raging war to deal with on that front, however dangerous and uncertain the fortunes of war remain there and certainly in Afghanistan.

Thanks to the previous occupant of the White House, the vision of a general named David Petraeus, and the devotion and self-sacrifice of those in uniform and out who have been defending this country for the past eight years, Guantanamo has stopped filling up and is now emptying. But even after all these years, the hard cases there have not grown any easier.

It was a good photo-op, this brave new president's signing that executive order closing Guantanamo, but is it good policy, or even a policy at all? For this presidential decision won't have to be put into effect for a year, and, by then, who knows what new executive orders will be needed to reverse the old? To sum up this president's non-policy: When in doubt, appoint a Cabinet-level study commission.

At the same time, the new president is moving to treat all the illegal combatants being held at Guantanamo as legal ones, that is Prisoners of War under the Geneva Conventions, even if that body of law specifically excludes those who do not follow the laws of war.

The legal line between honorable warriors and those who arrange for passenger planes to crash into skyscrapers with all too predictable and ghastly results may have just been erased. Or maybe not. It's not always easy to tell with our new president. Never fear: If he appears untested, he soon will be. Doing away with deterrents like military commissions will help assure that much.

Let's hope all this doesn't get too interesting, remembering that hope is no substitute for vigilance. The president and commander-in-chief who just left office managed to defend this country for 2,686 days without a successful terrorist attack on these shores. It's a streak that needs to remain unbroken.