- The Washington Times - Tuesday, February 24, 2009

Score one for the Bush legacy. The Justice Department has embraced an important aspect of the Bush administration’s detainee policy. In response to an inquiry by a federal judge regarding habeas corpus rights of detainees held in Afghanistan, Acting Assistant Attorney General Michael F. Hertz stated pithily, “The government adheres to its previously articulated position.”

This prudent continuity in policy is pleasing, but opens up a contradiction for the Obama administration.

The central question was whether federal courts have jurisdiction to hear cases involving non-citizen prisoners captured in the course of military operations while being held outside the United States. The Bush administration’s position, now adopted by President Obama, was no. Yet this was also the Bush team’s position on Guantanamo, which it argued was constitutionally outside the United States, a status established during the Clinton years. The Supreme Court eventually, and with some legal gymnastics, ruled otherwise, which led to the initiation of the military tribunal system. But the Obama administration will extend even more rights to the Guantanamo detainees than even the Supreme Court thought necessary. How this squares with the position that detainees in Afghanistan have no constitutional rights whatsoever is hard to understand. The Bush policies at least had the advantage of consistency.

This reinforces the conclusion that Mr. Obama’s stance on Guantanamo was less principled than political.

He had pledged to close Guantanamo as one of his first acts in office, mainly as a sop to his anti-war support base. At his Feb. 6 meeting with the families of the victims of terrorism, the president played up the symbolism of closing Guantanamo more than the substance. He lumped Guantanamo together with Abu Ghraib as negative symbols of America’s war against terrorism. The two are completely unrelated, of course - there have never been credible allegations of Abu Ghraib-like misconduct at Guantanamo - but in the fantasy world of the anti-war radicals they are akin to the Gulag or Auschwitz, so Guantanamo had to go.

The left has denounced the detainee facilities in Afghanistan with the same vitriol as Guantanamo, but since they lack Gitmo’s marquee value the administration may consider this move less risky politically. And maintaining the Bush administration’s logic on detainees in Afghanistan does present the Obama team with an important opportunity. As previously noted in these pages, the decision to close Guantanamo had been rushed through without adequate staff work and without considering the negative ramifications of the decision. In particular the administration faces a quandary: What to do with the remaining Gitmo detainees? The answer now presents itself: Ship them all off to Afghanistan, where they can be detained for as long as necessary without the right to demand lengthy, complicated trials in U.S. courts that could potentially reveal important intelligence secrets and compromise our national security. Problem solved.