Where’s the Change?

The fate of the prison at Guantanamo Bay remains an open question. Despite President Barack Obama’s announcement on his second day in office that he would close the prison, Congressional support remains weak and the president has backtracked, offering a compromise that Marjorie Cohn on called “an appeasement plan.”

At issue are the 240 remaining Guantánamo detainees, many of whom are considered dangerous but cannot be tried in American courts because the evidence against them had been obtained by torture.

Many Democrats have joined Republicans in opposing closure—at least until a plan can be drafted to deal with the remaining detainees. In particular, Democrats were concerned about the 50-100 detainees who could be moved to American prisons.

What is not at issue, it appears is the continuation of a version of the Bush military commissions and—despite words to the contrary—his more general commitment to the overblown rhetoric that has governed our foreign policy for the last eight years.

The president has maintained that terrorism poses an existential threat to the United States and that many of the Guantanamo detainees are too dangerous to try under the rules of justice that have served this nation relatively well over the last 233 years.

During a speech at the National Archives, he announced a plan to deal with the Guantanamo detainees that he said would uphold American values. His first approach will be to try defendants in federal courts.

For most, however, he plans to continue the troubling use of military commissions—though with revisions designed to allow them to work more like a criminal court—or, even more troubling, ship detainees back to their home soil.

Unless, of course, he determines they “pose a clear danger to the American people,” but cannot be prosecuted because of tainted evidence or some other reason. Then, he says, they will remain in custody, though new standards will be applied “to ensure that they are in line with the rule of law.”

“We must have clear, defensible, and lawful standards for those who fall into this category,” he said. “We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”

But, and this is key, the detentions—like the war on terror, or whatever it is being called these day—have no expiration date. They are, by their definition, “indefinite” and at odds with our constitutional values.

Cohn, who is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild, finds the plan a trouble copout, calling Obama’s plan for “prolonged detention” nothing more than a new coat of paint that hides the rot.

“Obama’s plan for ‘prolonged detention,’” she wrote, “is nothing more than a newly-coined phrase for ‘preventive detention,’ a policy that harks back to the bad old days of the Alien and Sedition Acts of 1798 and the internment of people of Japanese extraction in the 1940’s. If Obama succeeds in convincing Congress to legalize ‘prolonged detention,’ the United States will continue to be a pariah state among justice-loving nations.”

Essentially, the president has bought into the underlying argument that has underpinned every bad decision we have made as a nation for the last eight years—that we are in a state of war, that terrorism, rather than being a law-enforcement or intelligence issue, is a military problem that demands military solutions. That has put us in the position of using our howitzers to kill a scorpion.

Yes, the Obama plan is better than the Bush plan. But just about anything would have been an improvement. It doesn’t mean that Obama has found a way of mixing pragmatism and principle.

Hank Kalet is online editor for The Princeton Packet newspaper roup. Email; blog,; Twitter,

From The Progressive Populist, July 1-15, 2009

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