JURIST Contributing Editor Michael Kelly
of Creighton University School of Law says that President Obama's recent announcement that his administration will reform rather than abolish the military commissions at Guantanamo Bay threatens to undercut his highly-touted efforts to bring change and improve international perceptions of the United States...
erception is a funny thing. Markets rise and fall largely on perception - the perception of an economy's strength, a banking system's integrity, a company's relative worth. Lately, our markets have been falling. Perception is similarly key to the success of America's foreign policy. The perception after 9/11 that we were the victims of an unprovoked attack garnered sympathy and support from around the world. But that perception changed after the illegal invasion of Iraq in 2003. Suddenly, the U.S. was viewed as only interested in advancing its own cause in its own way and the rest of the world, including our allies, could go fly a kite.
The military detention center at Guantanamo Bay, Cuba became emblematic of this latter perception and in many ways cemented it. Widely viewed as a "legal black hole" into which those captured in the global war on terror were dumped, the legal process afforded detainees at Gitmo was far less than that required by the Constitution, the Geneva Conventions, or regular military law. Military commissions established by executive order effectively stripped away a defendant's right to challenge his detention, introduce or rebut reliable evidence, call witnesses or even consult with legal counsel of his own choice. President Obama railed against this injustice as a Senator and cheered the Supreme Court when it consistently rebuked President Bush's repeated attempts to legitimize his treatment of detainees.
Once in the White House, President Obama ordered the closure of the detention facility by January 2010 along with a review of all pending cases and procedures. Everyone anticipated that this was the beginning of the end. That perception, perhaps a projection of wishful thinking in retrospect, appears to have been ill-founded. Consequently, the President's recently-announced decision to fix the military commission process in Gitmo instead of dumping it altogether was shocking. Especially in light of how the world and our allies view the entire tangled mess.
The whole point of the President's goodwill tours abroad has been to repair America's image. Again and again, we have been told to expect nothing substantive from these trips because their main purpose is to restore the world's faith that the oldest democracy had not in fact lost its moorings but had returned to the family of nations that treat people with dignity, no matter what their national origin may be. Now, to resurrect the flawed military commissions of Gitmo is to simply throw that entire effort out the window. No matter what reforms are put in place to advance the rights of defendants, and there are many that could be so crafted, Gitmo is still Gitmo. Because of that inescapable fact, perceptions of injustice and cruelty are equally inescapable. An Article III federal court, with all the accompanying defense rights, could be located there, and if it's renamed a military commission and put at Gitmo it wouldn't make a dime's worth of difference. America's reputation as a defender of human rights and the rule of law would remain tarnished by association.
True, there are prickly logistical and diplomatic issues with returning detainees to their countries of origin or third states. Truer still, no one can politically stomach the prospect of terrorist suspects, no matter how innocent they are, being released into the U.S. But that doesn't mean that Gitmo is the only answer. The Geneva Conventions require that states afford the same legal process to detainees that they afford to their own troops - the underlying theory being that each state will treat its own troops with a certain minimum level of decency. America's Uniform Code of Military Justice is the envy of militaries around the world and widely regarded as providing the best and most flexible legal process for armed forces anywhere.
President Obama can easily use this mandate and this process to solve this problem. Both the detention facility and
the military commissions at Gitmo need to be closed down. No good can ever come from retaining them - whatever their ultimate form. He doesn't have to ship detainees to Ft. Leavenworth for this to happen. They can be returned to U.S. military bases in Afghanistan - the battlefield that generated most of the 241 current detainees in the first place. Holding on to Gitmo would be analogous to the U.S. retaining prison authority over Abu Ghraib after the prisoner abuse scandals of 2005. The Bush Administration had the good sense to drop that hot potato immediately. Let's hope the Obama Administration follows suit on Gitmo. The President was elected on the promise of change. He must not let that perception of change be undermined so quickly.Michael J. Kelly is Professor of Law at Creighton University in Omaha, Nebraska, and Chair of the Association of American Law Schools Section on National Security Law. The views expressed here are not those of the AALS.