December 27, 2010
A Step Toward Fairness
This country continues to pay a high price in both security and reputation for the Bush administration’s many violations of international law at Guantánamo Bay, Cuba. After more than a year of review, the Obama administration is preparing an executive order intended to resolve the situation of four dozen prisoners in the prison there who are caught in a legal limbo: they cannot be freed because they are considered a potentially serious terrorist threat, and they cannot be tried because the evidence against them is classified or was improperly obtained, often through torture.
The proposed order could give these prisoners a form of legal representation and a system to review their cases. It would not remove the tarnish to the American justice system of holding prisoners without trial. But it could represent a significant step forward in dealing with these cases and possibly reducing their number.
The order, which could be signed by the president as early as next month, would require periodic review of each prisoner’s case by a kind of parole board drawn from agencies throughout the executive branch and not just the military.
This board would regularly assess whether a prisoner still represented a danger to public safety or was safe enough to release. The prisoners would have access to an outside lawyer, if they requested one, and would also be allowed an advocate within the system — a change from the Bush administration’s policy of allowing them only a “personal representative,” who was unable to help them make the case for release.
President Obama’s plan to close Guantánamo — thwarted by Congress — had always recognized that there would be a small core of prisoners who could not be tried because of the nature of the evidence against them or the illegal way that evidence was obtained. (Others could be tried by a civilian or military court, or sent to another country or simply released.) These endless detentions clashed with the most basic legal protections of the Constitution. But judges have upheld them because of the public-safety issues involved.
The Obama administration deserves credit for trying to come up with a realistic legal process for these 48 prisoners, particularly after the Bush White House seemed content to hold them indefinitely with only a thin whitewash of due process. President Obama has rightly barred coercive interrogations and other forms of torture for new prisoners, and the administration needs to ensure that any future detainees are held only on admissible evidence.
Unfortunately, Congress seems determined to stymie every effort to close Guantánamo and begin dealing with its remaining prisoners in court. Last week, Congress passed a defense authorization bill that prohibits spending money to transfer a prisoner from Cuba to the United States, or to buy any prison facility in the United States that might hold the 48 in-limbo detainees.
To continue with military operations, the president will probably have to swallow his objections and sign the bill. Over the next year, he must work harder to persuade Congress not to interfere with the work of bringing fairness to the justice system at Guantánamo. As Mr. Obama rightly argued when discussing the detentions last week, “We have these core ideals that we observe — even when it’s hard.”
