Obama's Guantanamo Disappointment

Yesterday was a major chance for the Obama administration to break forever with the criminal policies of George W. Bush who, I still insist, one day may be charged with war crimes in front of the International Criminal Tribunal in the Hague. Yesterday was a deadline for the Obama Justice Department to file a response to some 40 habeas corpus challenges of Guantanamo inmates, challenging their detention, on the basis that the US government had no authority under international law to hold them indefinitely. At the heart of the habeas corpus challenge was a Bush-era construction which granted the President exclusive authority to hold someone just on the basis that they "supported" Al Queda or Taliban no matter how tangentially they were connected. Rather than being just a case of legal semantics the fate of over 241 men still held at the concentration camp hung in balance.

And how did Obama do yesterday? He disappointed all of us who believe in the ideals of America, the rule of law, and international justice. In an under-reported statement, Eric Holder, our current Attorney General, claimed that the US government still had the authority to hold these individuals indefinitely on the basis of their "support" for Al Queda and without having to charge them. Dropping the name "enemy combatant" from the government justification and arguing that the power comes not from the President, but from the Congress, is nothing but a pure semantic exercise designed to make it seem like Obama was breaking with Bush while at the same time adopting the basis of his illegal policy in the so-called "war on terror."

Steven Engel, who was a senior lawyer in the Justice Dept in charge of detainee policy, said that "this seems fundamentally consistent with the positions of the prior administration." Eric Holder's Justice Dept lawyers also inserted the word "substantially" in front of "support" of terrorists to make is seem that they are more meticulous in their legal justification. What is simply breathtakingly disappointing is that Holder argued that these policies are somehow rooted in International Law! This is exactly what Bush had argued! And it is exactly why his appearance in front of the ICC in the Hague seems a possibility (however remote) in the future. Just because there was one case of "enemy combatant" after WWII, this does not give the US the right to hold individuals in detention indefinitely without bringing charges just because the President, the Congress, or God himself said so. This is illegal! Period!

I understand that there are so many legal complexities in these cases and that some, if not many, of these individuals might be dangerous to the security of our nation. But to violate our very basic ideals is to be defeated by the enemy who holds himself to no such standard. We live in a democracy, a society ruled by law which, while imperfect and full of loopholes, is the best thing we could have come up with in the past 200 years. To throw this whole network of laws into disarray on the basis of the current (and temporary) threat to our national security is to admit defeat by exposing the fragility of our democracy and the hypocrisy of our values.

President Obama has shown immense boldness in dealing with a lot of issues and has began to implement many of his campaign promises. His policies, as I wrote in earlier posts, have led to real improvement in the life of prisoners like al-Marri. Ending the Guantanamo shame, however, remains a promise yet to be fulfilled. And he will be held accountable now that he has taken ownership of this legacy stained with war crimes.

As a constitutional lawyer I am sure that Obama is aware of former Supreme Court Justice Louis Brandeis' famous creed that "the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." President Obama should laminate this quote and put it above his desk in the Oval Office.