Spineless in Washington:
Obama and Guantánamo Bay
WILLEM BUITER / Mavercon 13jan2009
The moral turpitude and ethical spinelessness of the Bush administration over the Guantánamo Bay detention camp have also infected president-elect Barack Obama. The offshore detention and torture camp still holds 248 detainees. During his election campaign, Obama promised to close it. His proposed time table does not impress, however. While Obama is now expected to issue an executive order during his first week in office closing down Guantanamo Bay, the measure will not be implemented, that is, the camp won’t actually be closed, during the first hundred days of his administration.
Barack Obama’s lack of moral fibre on this issue is manifest from his own words.
“It is more difficult than I think a lot of people realise”. Indeed, doing the right thing is often difficult and can be personally or politically costly. Difficult decisions should not come as a surprise to the president-elect. It’s what you expect to get on your plate when you run for president of the United States of America, rather than for dog catcher.
“Part of the challenge is that you have a bunch of folks that have been detained, many of whom may be very dangerous, who have not been put on trial”. Indeed. The US government created an offshore detention centre where prisoners suspected of terrorist activities could be held, abused, mistreated, tortured, tried in kangaroo military courts or simply detained indefinitely without being charged let alone tried. In doing so, the Bush Jr. administration cocked a snook at the US Constitution, at habeas corpus (the right to have your day in court, to know what you are being charged with and to face your accuser), at the right to a fair trial generally, at due process, the rule of law, and at international conventions, signed by the US, on human rights and civil liberties.
It is certainly possible, indeed likely, that many or most of those still detained in GTMO are very dangerous. That is no reason for detaining them if there is no proof that would stand up in a normal US court of law. If you don’t have the evidence to charge a person with a crime - evidence that would stand up in a normal US court of law - you have to set them free. That’s the law. That’s the rule of law.
“And some of the evidence against them may be tainted even if it’s true”. Again, a good point. Some of the evidence against them may be inadmissible, even in the kangaroo courts established at Guantanamo Bay, let alone in a normal US court of law, because it was obtained through torture or through ‘torture lite’, the water boarding, and other forms of physical and mental abuse of prisoners that remain part of US military interrogation practice.
Obama also appears to have adopted the Bush argument that Britain and other European countries should take some of the remaining GTMO inmates (other than their own nationals). In his final White House press conference, Bush said: “I understand that Gitmo has created controversies. But when it cam time for those countries that were criticising America to take some of those detainees they weren’t willing to help out”. No they won’t and why should they? Bush obviously hasn’t been in a china shop recently, and appears unfamiliar with the expression: “You break it, you own it”. I can understand the desire of Bushama and Obushma to externalise this internality, but this is a US problem that requires a US solution.
The right course of action is simple. Just after midnight, on Tuesday January 20, 2009, when Barack Obama officially becomes the 44th president of the United States of America, all remaining Guantánamo detainees are put on a plane and are flown to the USA, where they are put under the jurisdiction and control of the US court system. I would favour the normal, ‘civilian’ Federal court system, because terrorism is a crime and terrorist should be treated as ordinary criminals. The alternative - following the unhelpful ‘war on terror’ model - would be to treat the prisoners as prisoners of war and try them in normal US military courts.
Those that can be charged under US law will be charged and, if convicted, will pay with their lives or their freedom for their crimes. Those that are acquitted, and those that cannot be charged with a crime under normal US legal procedures, are released. If they are not US citizens, they should be sent back to their countries of citizenship or origin, as long as this does not put them at risk of being tortured or killed there. Extraordinary renditions have no place in the game plan of a civilised nation. If they cannot be sent back to their own countries without endangering their safety, they should be allowed to stay in the USA, as free individuals.
It may well be true, as some have argued, that if a Guantánamo detainee, released because there is no evidence to hold him that would stand up in a normal court of law, were to commit a terrorist act (or any kind of criminal act) against the US, its residents or its citizens, the American public would never forgive the president that approved and arranged his release. What of it? The point of being president is not to be forgiven by the American people for doing the right thing. It is doing the right thing - and damn the torpedoes.
The murderers and suicide cultists of Al Qaeda and other extremist Islamist groups threaten life and limb. But although evil and violent, they pose no material threat to the American way of life and to our freedom. Only the government’s phobic and over-the-top reaction to the threat posed by violent, extremist Islamism undermines our freedom and the Bill of Rights.
The contempt for the rule of law - for the fundamental concept that government too is established under the law and operates under the law - expressed through the creation of the Guantánamo Bay detention camp by the Bush Jr. administration, represents one of the darkest events in the post-World War II history of the USA. It has done more to lower the international prestige and moral authority of the USA than any other policy decision in my lifetime. It makes one ashamed of the political system that produces such leaders. And now we witness this dark act being tolerated and continued because of the moral cowardice of the incoming Obama administration. This opportunistic, spineless behaviour is a huge blow to all those who hoped that the new president, unlike his predecessor, would be able to spell the word ‘decency’. It is also a major missed opportunity to restore America’s standing in the world.