- The Washington Times - Thursday, January 15, 2009

ANALYSIS/OPINION:

President-elect Barack Obama has pledged to close the notorious detention facility at the U.S. Naval Base Guantanamo Bay, Cuba, as soon as possible. But he has also made clear that it could still take months, or as much as a year.

The New York Times reported Wednesday that Mr. Obama might, as expected, issue an executive order to close Guantanamo on the very day he takes the oath of office as president Tuesday.

However, Mr. Obama told ABC News on Sunday that Guantanamo could not be shut down overnight. “It is more difficult than I think a lot of people realize,” he cautioned. Shutting it down even within a 100-day deadline of his taking office would prove to be “a challenge,” he conceded.

Mr. Obama’s caution on the issue has outraged many human rights activists. But it was honest and prudent, all the same. If there is one thing along with politics in which the president-elect has specialized knowledge, it is the law. He is a graduate of Harvard Law School - which Presidents Franklin D. Roosevelt, who never took a law degree, and John F. Kennedy, whose Harvard degree was in international relations, were not.



Mr. Obama, therefore, realizes the truth of poet T.S. Eliot’s warning: “Between the idea and the reality … falls the shadow.” In other words, pledging to do something complicated and difficult, and getting it actually done are two very different things.

Mr. Obama knows that there are serious issues about what to do with the remaining 250 or so detainees, some of whom are undoubtedly dangerous. Alternatives in dealing with them include releasing some, prosecuting others and repatriating some to be either freed or imprisoned in their lands of origin. But some of these options would require some new legal rationales.

There are other issues far beyond the legal complexities as well: Mr. Obama knows that if a released detainee is later involved in a major terrorist attack, that would be a blow to his presidency and administration.

But Mr. Obama could not leave the current system of indefinite extra-legal detention away from U.S. soil and belated trials by military commissions in place even if he wanted to.

Guantanamo has become the symbol of everything the Bush administration was criticized for in the war on terrorism around the world. It has become an international metaphor for contempt for the rule of law and, as such, has become a huge propaganda weapon for anti-American Islamists and other critics of the United States.

Susan Crawford, an Obama team official who has focused on the issue of military commissions, has said that Mohammed al-Qahtani, the purported “20th hijacker” in the Sept. 11, 2001, plot, was tortured, and therefore, she would not allow his prosecution. A former prosecutor at Guantanamo has said the preparation of evidence against many detainees is a mess and in no state to pursue prosecutions.

There is no doubt that the Bush administration has handed over to its successors a huge legal mess concerning the status and even the cases against many of the detainees still held in Guantanamo.

Even here, with key perpetrators in the Sept. 11 plot safely captured and held for several years, President Bush ended up handing over the really difficult decisions to his successor.

However, holding civil trials as hundreds of future Obama administration Justice Department officials are determined to do will carry grave risks of their own. The security requirements to protect the judges, lawyers and juries in such trials will be enormous, and the risk of al Qaeda and other Islamist groups stepping up retaliatory terrorist attacks against U.S. civilians during such trials would be very real.

Also, the Sept. 11 attacks could be regarded as a war-crime atrocity, but they certainly did not fall into the category of any ordinary crime. Their perpetrators regarded their activities as acts of war. It would, therefore, be far more fitting to try the accused in military courts rather than federal ones, as Mr. Obama and his future Justice Department appointees want.

For all the criticisms that have been made against the operation of the military commissions, continuing to try terrorism suspects in them would make the security issues of protecting the courts far easier. The trials would be expedited and be conducted far more quickly, an essential consideration both from the security point of view and because the final disposition of the cases has already been so long delayed.

There is no question that the operation of the Guantanamo holding facility has seriously damaged U.S. standing around the world over the past few years, but it also is clear that Guantanamo played a thankless but crucial role in allowing U.S. authorities and armed forces to hold terrorism suspects en masse and gather crucial information from them.

For all the well-documented abuses and mistakes in holding innocent men, the Guantanamo system fulfilled its primary purpose in helping to prevent any more terrorist attacks like Sept. 11 on the U.S. mainland.

The American people may miss it when it’s gone.

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