President Obama has once again pledged to close the Guantanamo Bay prison. But can he back up his brave words with decisive action? The answer is yes, if he chooses to.
At present, legislation bars him from sending the Guantanamo detainees to the mainland United States to receive justice from the federal courts, leaving them to be tried by slow-moving military commissions that deny them many of the guarantees of civilian legal procedure.
Nevertheless, the president has a way forward. He can, on his own authority, send federal judges to Guantanamo, where they could resolve the remaining cases in trials everyone can respect.
Previous presidents have established federal civilian courts on territory under American military control without going through Congress. The clearest precedent was set in postwar Germany.
Exercising his authority as commander in chief, president Harry S Truman created a system of civilian courts in the American zone of occupation. In the 1950s, Dwight D Eisenhower used the same power to create a special United States Court for Berlin, which remained under occupation even after the Federal Republic regained full sovereignty in western Germany. A regular federal judge presided over a criminal trial in that court as late as 1979 – a year after president Jimmy Carter gained Chief Justice Warren Burger’s consent to dispatch a federal district judge, Herbert Stern, to Berlin.Hunger strikes
Nothing prevents Obama from establishing a similar court at Guantanamo, where 166 prisoners remain under indefinite detention and about 100 have gone on a hunger strike. Acting under his authority as commander in chief, the president should quickly direct a team of district judges to try the detainee cases in Guantanamo under civilian criminal procedures. Such an order should also create a panel of federal judges to hear appeals.
The current chief justice, John G Roberts Jr., could be expected to follow Burger’s precedent in recognition of Obama’s constitutional obligation to “take care that the laws be faithfully executed.”
Decisive intervention is particularly important now, since the work of the military commissions has been interrupted by revelations that defence department computers gained access to e-mail messages among the defence lawyers, and potentially with their clients.
These discoveries came on the heels of reports that microphones in the courtroom and a hidden microphone in a defence lawyers’ meeting room permitted eavesdropping on confidential conversations.
Another hidden hand became visible in another episode. Since some testimony involves secrets, there was a plausible basis for allowing the military judge, Col James Pohl of the army, to control the audio stream available to journalists and spectators viewing the proceedings. But it turned out that he wasn’t the only one making these decisions. An unseen censor who the government said was working for the “original classification authority” – presumably the CIA – was also in control of a cutoff switch behind the scenes.
We have reached the point of no return. Since President George W Bush revived military commissions in 2001, half a dozen prosecutors have resigned in protest and Congress has twice passed legislation in efforts to create a system that might win public confidence.
Now the escalating hunger strike has led to forced feedings and physical confrontations in which guards have used nonlethal bullets to quell unrest. It is only a matter of time before suicide attempts further intensify the cycle of resistance and repression.
Presidential speeches will not suffice to cut short the series of tragic episodes that loom ahead. Only dramatic action will induce the prisoners, and the larger world, to take seriously America’s determination to end this legal nightmare.
Though holding the trials will address a shameful failure of the American government to deliver due process speedily, it will not solve all of the problems evident at Guantanamo. The government must also find a way to resolve the cases of prisoners who are not presently under charges but are deemed too dangerous to release, or for whom no country willing to accept them can be found.
But by joining together to bring federal judges to Guantanamo, the president and the chief justice would be doing more than vindicating the rule of law. They would be setting an example for collaboration, between the branches of government, and a commitment to seeing justice done, that might encourage Congress to take a fresh look at the other obstacles to closing the prison. Then, perhaps, Congress and Obama would finally take whatever other steps are needed to bring a decade of blunders to an end.
