The words could have been spoken by a government official in Orwell’s 1984: “Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees,” President Barack Obama said.
What Obama actually did, the Washington Post reported, was to sign “an executive order ... that will create a formal system of indefinite detention for those held at the U.S. military prison at Guantanamo Bay, Cuba, who continue to pose a significant threat to national security. The administration also said it will start new military commission trials for detainees there.”
In other words, Obama, who ran for president in 2008 promising to reverse the atrocious human-rights record of George W. Bush, has formally embraced his predecessor’s policy of detaining persons suspected of being, but never proven to be, terrorists. A review process will be set up — within the executive, not the judicial, branch — making it little more than a sham. Obama’s pledge to close the prison is officially history. His executive order asserts presidential authority to hold people indefinitely without ever bringing them before any kind of judicial authority, not even military commissions, which have been criticized as kangaroo courts even by some of the prosecutors.
The Post notes, “The executive order applies to at least 48 of the 172 detainees who remain at Guantanamo Bay. An inter-agency panel led by Justice Department lawyers determined that this group could not be prosecuted in military commissions or in federal court because evidentiary problems would hamper a trial.”
Thus either the evidence could not be disclosed without revealing classified material or it would be inadmissible under the evidentiary rules at the heart of traditional Anglo-American jurisprudence. The first problem could be remedied with closed court sessions, as it has been many times in the past. As for the second, why would evidence against a prisoner be inadmissible? Among the likely reasons is that it was obtained by torture inflicted by the CIA or one of the CIA’s outsourced torturers under the program known as “extraordinary rendition.”
Traditionally in the United States, when the government cannot bear its burden of proof before a court, it must set a suspect free. But the so-called “war on terror” changed all that for people arbitrarily branded terrorist suspects or enemy combatants. Carrying on the policy established by Bush, the Obama administration takes the position that someone felt to be a threat to national security can be denied a trial and held prisoner indefinitely. Nothing is more un-American.
Naturally, Republican hawks love Obama’s order. Rep. Peter T. King, chairman of the House Homeland Security Committee, who held hearings on domestic Islamic radicalism, praised him for ratifying Bush’s policy: “I commend the Obama Administration for issuing this Executive Order. The bottom line is that it affirms the Bush Administration policy that our government has the right to detain dangerous terrorists until the cessation of hostilities.”
As Guantanamo-watcher Andy Worthington reminds us, the men held at Guantanamo typically were not captured on any battlefield. (Although if they were, they came into conflict with U.S. forces only after Bush ordered an invasion and occupation of their country. Resistance to those forces hardly constitutes a threat to the American people.) The hostilities King refers to are an open-ended crusade that manufactures its own enemies. Former commander Stanley McChrystal estimated that ten “terrorists” are created for every one killed — the military equivalent of a perpetual-motion machine. Since the conflict is designed never to end, Guantanamo detainees could be held for the rest of their lives without ever having the case against them properly heard by a judge. In some cases, even when prisoners have been ordered released under a habeas corpus petition, the Obama administration has continued holding them. The venerable principle of habeas corpus itself has been diluted beyond recognition.
The Bush-Obama policy disgraces America. Where are the Progressive Democrats who likened Bush to Hitler when he was doing what Obama is doing now?
Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine.
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