1/13/09

On his first day in office, President-elect Obama will announce that his administration will close the detention facility at Guantánamo Bay. His announcement represents a clear repudiation of President Bush’s approach to detention policies that have failed to bring terrorists to justice and have damaged the credibility of our justice system and our democracy in the eyes of the world. Rather than carefully and selectively detaining suspected militants under a clear legal framework, the Bush administration chose instead to classify them all as “enemy combatants” and send them to Guantanamo Bay, Bagram Prison, and other sites where they are still in legal limbo. Rather than bring in intelligence professionals to conduct effective, legal interrogations, it made things up on the fly and condoned torture. The Bush administration’s response ignored more than 200 years of history and imposed a false choice between our Constitution and our security.

Unfortunately, such a disastrous legacy will take a long time to undo. The announcement that the detention facility at Guantanamo Bay will be closed is past due, but unraveling the legal and institutional mess that President Bush leaves behind will be a difficult process. In closing the Guantanamo facility, the Obama administration must develop an effective and legitimate legal framework for dealing with the detainees and for combating terrorism more broadly. This effort will take some time to complete, but by setting out their intention to close the Guantanamo Bay detention facility, the incoming Obama administration is sending a clear signal that it will return to the values that have guided us so well over our country’s long history.

Obama set to issue executive order to close detention system at Guantanamo Bay.  The New York Times reported that “President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the Guantánamo Bay detention camp in Cuba, people briefed by Obama transition officials said Monday.” The Wall Street Journal reported that “One person familiar with his plans said an order regarding interrogation methods is also planned.” According to the Times, “[p]eople who have discussed the issues with transition officials in recent weeks said it appeared that the broad outlines of plans for the detention camp were taking shape. They said transition officials appeared committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.” In addition, the Times reporting indicated that the incoming administration would not seek a new law authorizing indefinite detentions within the U.S., a key Bush administration demand that has been criticized by opponents of the detention system at Guantanamo. [NY Times, 1/13/09. WSJ, 1/13/09]

Process of closing Guantanamo beset with complications, arising from Bush administration’s failed policies on detainees.  President-elect Obama’s commitment to closing the detention facilities at Guantanamo will likely run into a series of complications.  The Wall Street Journal reported that “[a]ccording to people familiar with Mr. Obama's plans, the executive order will direct officials to examine each detainee's case to determine who can be released and find a place to send those who must remain held.”  This process is likely to take some time, in part because of the need to separate dangerous suspects from those wrongfully detained, a point emphasized by the President-elect in an appearance on ABC’s “This Week” over the weekend.  Several other obstacles exist which may prevent the incoming Obama administration from swiftly closing the Guantanamo detention system.  The Times pointed to the fact that “[a]side from analyzing intelligence and legal filings on each of the remaining detainees, diplomats and legal experts have said the new administration will need to begin an extensive new international effort to resettle as many as 150 or more of the remaining men. Portugal and other European countries have recently broken a long diplomatic standoff, saying they would work with the new administration and might accept some detainees who cannot be sent to their home countries because of concerns about their potential treatment.”  Those involved with the process had also thought to move detainees from Guantanamo to Ft. Leavenworth, Kansas, as a temporary measure, until Sen. Brownback and Rep. Lynn Jenkins, R-Kan. “introduced legislation block spending any federal money to move detainees,” a move supported by Kansas Governor Kathleen Sebelius. [AP, 1/12/08. AP, 1/07/08. NY Times, 1/13/09. WSJ, 1/13/09]

Bush administration failed to create a responsible legal framework to prosecute terrorism suspects.  The Bush administration’s Guantanamo policy has created a legally disastrous situation for the incoming Obama administration.  Bush’s ad hoc attempt to keep terror suspects outside existing legal systems has failed to produce results, as seen with the Hamdan case and the turmoil caused by the confession of Khalid Sheikh Mohammed. Ken Gude of the Center for American Progress says that KSM confession “could have serious ramifications for the incoming administration. Most observers expect President-elect Obama to scrap the military commissions and use established US courts for the trial of any Guantánamo detainees. Yet, if the military commission accepts this guilty plea, it could place the Obama administration in a box. It is an unresolved question whether the prohibition on double jeopardy would preclude a separate trial in criminal court, but many legal analysts believe that it does. If so, any move to cancel the military commissions would call into question the validity of Mohammed's conviction, adding an extra layer of risk and uncertainty to the difficult decisions over the military commissions. Furthermore, carrying out the likely death sentence from such a flawed process would only enhance Mohammed's martyrdom in the eyes of his followers.” The Obama team confronts a complex web of court challenges and interrupted prosecutions. The New York Times notes that “In formulating their policy in recent weeks, Obama transition officials have consulted with a variety of authorities on legal and human rights and with military experts. Several of those experts said the officials had expressed great interest in alternatives to the military commission system, like trying detainees in federal courts, and appeared to have grown hostile to proposals like an indefinite detention law. They also said the transition officials were intensely focused on new international efforts to transfer many of the detainees to other countries. Several said the officials appeared concerned that a proposal for a new law authorizing indefinite detention would bring the new administration much of the criticism that has been directed at the Bush administration over Guantánamo.”  [The Guardian, 12/8/08. NY Times, 1/13/09]

On Guantanamo and combating terrorism, President Bush leaves a legacy that has undermined America’s core values and creates propaganda for the enemy. With the use of hearsay testimony and evidence procured from torture, the ad hoc legal framework at Guantanamo Bay has created a system that violates the traditions and values America was founded on.  The Bush administration’s use of enhanced interrogation techniques was also deeply flawed and failed to extract useful information.  “According to a former senior C.I.A. official, who read all the interrogation reports on K.S.M., ‘90 percent of it was total fucking bullshit.’ A former Pentagon analyst adds: ‘K.S.M. produced no actionable intelligence. He was trying to tell us how stupid we were.’” The Administration adopted “interrogation techniques considered illegal under the Geneva Conventions,” and the techniques were “based, in part, on Chinese Communist techniques used during the Korean War to elicit false confessions...”  The torture of detainees under American custody has also become a powerful recruitment tool for terrorist groups.  As Navy General Counsel Alberto Mora, who investigated allegations of torture and tried to stop the practices recently explained, “[s]erving U.S. flag-rank officers... maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo.” Moreover, a Senate Armed Services Committee report finds that “Al Qaeda and Taliban terrorists are taught to expect Americans to abuse them. They are recruited based on false propaganda that says the United States is out to destroy Islam. Treating detainees harshly only reinforces that distorted view, increases resistance to cooperation, and creates new enemies.” [Vanity Fair, 12/16/08. Senate Armed Services Committee, 12/08. Washington Post, 6/17/08]

What We’re Reading

Israeli officials say that Hamas is damaged but not destroyed as Israel considers further options.  The United Nations warns of a refugee crisis in Gaza.

Senator Hillary Clinton faces confirmation hearings today for Secretary of State.  Condoleezza Rice defends her record at State and the Bush administration’s foreign policy decisions.

Russia claims to have resumed gas supplies through the Ukraine as mandated in yesterday’s agreement, however EU monitors say no gas is flowing.

The U.S. trade deficit narrows as oil prices and Chinese imports fall.  Falling exports and rising jobless numbers in China cause protests and bring social issues to light.  The United States and China celebrate 30 years since relations were normalized under President Carter.

Gulf oil states seek a leading role in clean energy development.

Chairman of the Joint Chiefs, Admiral Michael Mullen, said that America must prevent the militarization of foreign policy.

The Washington Post profiles Iraqi strongman Nadhim Khalil as an illustration of a political shift in Iraq.

A new report warns that America is losing its lead in space and that the Obama administration faces great challenges in space policy.

Commentary of the Day

The Wall Street Journal looks at what Barack Obama could learn from Dick Cheney.

Anne Applebaum discusses the Russia-Ukraine gas standoff.