The Obama administration is preparing to increase the use of military commissions to prosecute Guant?namo detainees, an acknowledgment that the prison in Cuba remains open for business after Congress imposed steep new impediments to closing the facility.
Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees.
Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.
With the political winds now against more civilian prosecutions of Guant?namo detainees, the plans to press forward with additional commission trials may foreshadow the fates of many of the more than 30 remaining detainees who have been designated for eventual prosecution: trials in Cuba for war crimes before a panel of military officers.
The "political winds" have been blowing against the reckless proposition of trying terrorists in civilian court ever since it was first raised. Public and official opposition to the idea undoubtedly intensified late last year, when the administration's first foray into this ill-conceived national security experiment ended in near catastrophe:
The first former Guantanamo detainee to be tried in a civilian court was acquitted on Wednesday of all but one of more than 280 charges of conspiracy and murder in the 1998 terrorist bombings of the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania.
The case has been seen as a test of President Obama’s goal of trying detainees in federal court whenever feasible, and the result seems certain to fuel debate over whether civilian courts are appropriate for trying terrorists.
The White House deserves some credit for its belated nod to reality. It's been a long time coming. The Bush administration began establishing a framework for military tribunals after 9/11. Congress has twice blessed the process, including the 2006 Military Commissions Act, which was painstakingly crafted by lawmakers to ensure compliance with the Supreme Court's 2005 Hamdan decision. It passed behind a bipartisan majority in Congress (Senator Obama voted no), and was updated in 2009.
The Obama administration hoped to delay all non-previously scheduled military tribunals for terrorists until after closing the Guantanamo Bay prison, which obviously hasn't happened. Almost exactly two years after he signed an Executive Order mandating its closure, President Obama is begrudgingly admitting defeat by green-lighting military trials at Guantanamo for several of its unlawful enemy combatant inmates. (It's also worth noting that the administration's unsuccessful efforts to close or relocate the terrorist detention facility were frustrated and denied at every turn by a Democratic Congress).
This decision also continues this president's under-reported habit of maintaining, and even expanding, many of his predecessor's national security policies. It now appears that much of Obama's signature campaign rhetoric condemning President Bush's supposed "abuses" was little more than partisan bluster. Now that he's the man receiving intelligence briefings every morning, President Obama has summoned a strange new respect for the Bush approach. Even his most conspicuous symbolic rejection of previous policy has now slipped from his grasp: Far from being shuttered, Guantanamo Bay is a necessary fixture in the United States government's counter-terrorism apparatus. That's good news for our nation's security. It's also the source of exquisite heartache on the Left.