Andrew C. McCarthy
It is impossible for someone who has demagogued a complex problem to transform the overheated campaign cant into responsible principles of governance. When it comes to Guantánamo Bay and the wartime detention of alien enemy combatants there, demagoguery is exactly what candidate Barack Obama (and top aides like Eric Holder) engaged in. Now, as some of us forewarned, the inevitable damage control effort is underway.
Obama’s “Gee, this is harder than I thought” shuffle — which, in his trademark rhetorical habit of insulting the audience’s intelligence, is couched as if it were we, rather than he, who had failed to grasp the intricacies — was rolled out by the president-elect himself last weekend. The occasion was a soft-ball interview by ABC’s George Stephanopoulos, the latest of countless former Clintonites to lend the new administration a helping hand.
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And now we have
emerging news about an executive order Obama plans to issue on his first full day in office next week. Unfortunately, and reflective of his aforementioned rhetorical habit, what Obama is saying is meaningless where it is not wrong-headed.
Let’s start with the imminent Guantánamo “executive” order. It should be called a “symbolic” order since it will not actually execute much of anything. (The
New York Times, as determined as Stephanopoulos to help Obama dig out of the hole he’s made, gives the game away: “[E]ven if the detention camp remains open for months, the decision to address Guantánamo on the day after his inauguration seemed intended to make a symbolic break with some of the most controversial policies of the Bush administration.”)
To rehearse some history that the incoming administration and its media fans would prefer to forget, Obama repeatedly called during the campaign for the immediate shuttering of Gitmo. We needed, he
insisted, to “restore the right of habeas corpus” and show the world “we’re not a country that runs prisons which lock people away without ever telling them why they’re there or what they’re charged with.”
In a June
speech, Holder — now Obama’s nominee for Attorney General, a position calling for good judgment and measured analysis — irresponsibly trashed Gitmo as “an international embarrassment.” Echoing his candidate’s hyperbole, the legal adviser framed the detention center as a netherworld where Bush “denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution.”
But suddenly, with the new administration about to become politically accountable for U.S. national security, Gitmo isn’t such an embarrassment after all. Obama has finally figured out that it’s a lot less embarrassing than (a) releasing dangerous jihadists forthwith (to pick up right where they left off); (b) transferring them to the only countries willing to take them (i.e., countries where they’d be tortured, which is why President Bush didn’t do it); or (c) bringing them into the U.S. and giving them
more due process (they already had plenty when Obama and Holder were implying they had none) but at the risk of seeing them ordered released
here — as a federal judge has already directed in the case of 17 detainees. (On these Uighur Muslims, see
NRO’s editorial
here, and my article
here.)
So — surprise, surprise! — Gitmo will remain open for business. Yes, the executive order will portentously restate Obama’s desire to close the facility at some future point (maybe a year from now, maybe more, who really knows?). That, however, is the same desire Bush officials have expressed for some time now. It was never that Bush
didn’t want to close the place; it was that he
couldn’t close it without imperiling lives.
Further, the incoming president will commit to a diplomatic effort to repatriate alleged combatants. Again, that is precisely what the outgoing president has been pursuing for years. That’s why more than 500 detainees (over two-thirds of those held at Gitmo at one time or another) have already been transferred out. The problem with the remaining 248 is not that Bush didn’t want to be rid of them. It is that other countries don’t want trained jihadists roaming
their streets, either — the same cold reality that has inspired Obama himself to become less embarrassed by Gitmo.
At bottom, Obama has faltered because his premises are wrong. Consider the statements issued by his camp. An aide, for example, tells the
Times that “the legal framework at Guantánamo has failed to successfully and swiftly prosecute terrorists.” That’s like saying, “This hammer doesn’t seem to do tooth-extractions very well.”
The purpose of holding enemy combatants in wartime (which the Supreme Court has repeatedly validated, as recently as the 2004
Hamdi case) is not to prosecute them. It is to remove them from the battlefield and derive intelligence. Prosecution is incidental to those objectives. Because it is not the point of detention, it should come as no surprise that it will often not be the practical result of detention.
If your principal aim is “to successfully and swiftly prosecute” people, you do a thorough investigation and, like an FBI agent, meticulously document the collection of your evidence. You arrest suspects only when you have a prosecutable case, taking pains — like a New York City cop — to read them their
Miranda rights so that any post-arrest statements they make will be admissible in court.
By contrast, if your first imperative in
warfare detention is the right one — namely, to defeat the enemy and thus protect American lives, regardless of whether you will also be able to establish courtroom guilt — you end up apprehending many people who cannot be prosecuted at all, much less prosecuted “swiftly.”