Earlier this week, human rights activists, civil libertarians—and, let's face it, just about every sentient American—got some good news from unnamed sources inside the emerging administration-elect: President Obama is apparently already working on a plan to close Guantanamo Bay.
This is hardly a surprise. Defense Secretary Robert Gates and Secretary of State Condoleezza Rice, who don't often find themselves lining up alongside the ACLU, went on record months ago about the need to shutter the prison camp. These days, the conventional wisdom on both left and right is that Guantanamo is not just doing serious damage to America's international reputation; its continued existence has doubtless become a valuable propaganda tool to Islamic fundamentalists. Put in starker terms, a detention facility that was intended to help protect America from another terrorist attack may well have increased the possibility of one.
So Gitmo must go. The question is: What will the Obama administration do with the approximately 250 detainees still imprisoned there?
The first thing to note is what will not happen to these detainees. They will almost certainly not be tried in military commissions. These, recall, were the special war-crimes courts that President Bush unilaterally summoned into being via military order in November 2001. In the seven years that have passed since then, a grand total of two detainees have been successfully prosecuted in military commissions: Osama Bin Laden's driver Salim Hamdan, and al-Qaida propagandist Ali Hamzi al-Bahlul.
And I am using the term successfully in its loosest sense. When Hamdan was brought to trial this past summer, the government was aiming to put him behind bars for 30 years to life. After being acquitted on the most serious charge brought against him—conspiracy to support terrorism—Hamdan was given just five and a half years. Factoring in time served, that meant a sentence of less than five months. His time will have been served at the end of the year. (It remains to be seen whether Hamdan will actually be released, though, as the administration has claimed the authority to hold him as an enemy combatant until the end of the hostilities in the war on terror.)
Believe it or not, at least from the perspective of the Bush administration's legacy, that's the good news. The bad news is that these military commissions have been almost universally denounced as kangaroo courts. To underscore the point, the conservative Supreme Court has declared them unlawful not once but twice, first in Hamdan v. Rumsfeld (when the justices ruled that the commissions lacked proper congressional authorization and violated due-process guarantees provided by the Geneva Conventions and the Uniform Code of Military Justice) and more recently in Boumediene v. Bush (when the justices concluded that the Military Commissions Act of 2006—Congress' legislative effort to sanction the commissions—amounted to an unconstitutional suspension of habeas corpus). Given the court's long-standing reluctance to check the president during times of armed conflict, between Hamdan and Boumediene—and two other dramatic war-on-terror rulings against the president—the Bush administration has made constitutional history.
All of this is to say that the military commissions are too tainted to represent a realistic venue in which to try suspected terrorists, particularly for an incoming administration that will be understandably eager to distance itself from the failed policies of its predecessor. In retrospect, it's easy enough to see where the Bush administration went wrong with the military commissions—and, for that matter, with its entire prosecution of the war on terror: In its zeal to protect our national security, it overlooked the fact that upholding such basic rule-of-law values as a defendant's right to a fair trial are important interests in their own right and also have a valuable role to play in combating terrorism.
Of course, identifying the problem is a lot easier than fixing it. The daunting challenge Obama now faces is to figure out how to preserve and promote rule-of-law values and restore civil liberties while at the same time protecting our intelligence—not to mention the sources and methods used to gather it—and ensuring that no one who poses a serious threat to the United States is set free.
Meeting that challenge will begin with carefully sifting through the classified files of the remaining prisoners to determine who warrants continued detention. The Bush administration has already identified 50 or so men whom it would like to transfer out of Guantanamo. The problem, in some cases, has been finding a country that will take them and not persecute them. In other cases, the obstacle has been reaching an agreement with their home countries—that includes you, Yemen—to either continue to imprison them or at least keep close tabs on their activities.