Prisoners) about the never-ending "war on terror." Hertzberg points out how shameful it is that the 172 "shackled, isolated prisoners" still held at Guantanamo have "somehow been permitted to engender a miasma of popular fear and political cowardice."
As the New York Times so aptly stated in an editorial on Sunday, "President George W. Bush made [Guantanamo] a symbol of torture and illegal detention." In the wake of Attorney General Holder's announcement that Khalid Sheikh Mohammed and four others accused of involvement in the 9/11 attacks will be tried in a military tribunal and not in a civilian trial, Hertzberg notes how candidate Obama promised that, if elected, he would shut Guantánamo down, prosecute accused terrorists in civilian courts, and discontinue indefinite detention without indictment or trial. These promises, Hertzberg reminds us, "have been undone by a combination of political nihilism on the part of Republicans, political ineptitude on the part of his own Administration, and political fecklessness on the part of the people’s representatives on Capitol Hill." Or as described by the Times, "a triumph of raw politics over the nation’s security interests."
Although after the election Obama issued an executive order directing that Guantanamo be closed "as soon as practical," the "slippage," as Hertzberg puts it, "began less than a month later, with a complicated legal tussle over seventeen Gitmo prisoners." The "mere possibility" that they "might set foot on the United States mainland was enough to ignite a brushfire of not-in-my-back-yard hysteria." In May 2009, the Senate voted overwhelmingly "not only to keep Gitmo open indefinitely but also to block the transfer of any of its detainees to U.S. soil, where the civilian courts are."
As Hertzberg writes, "a dispiriting series of tactical retreats from civil-liberties principles has followed." In January, Obama signed a defense-appropriation bill that continued to block funding for the transfer of detainees from Guantánamo to the U.S. And then in March, as I wrote about here, Obama issued an executive order clearing the way for military tribunals to be held at Guantanamo.
The Obama Administration can mitigate some of the unjust aspects of these military trials by taking the steps outlined in the Times editorial: (1) not rely on evidence obtained through torture or coercion or evidence that would otherwise be inadmissible in a civilian court; (2) appoint experienced defense counsel and provide them with sufficient resources; (3) make the trials truly public by televising the proceedings; (4) provide greater access to the press and less secrecy.
Hertzberg argues that Obama could -- and should -- remedy another aspect "of the moral morass that Guantánamo symbolizes": the "lack of any official accountability for the abuses of the past, especially the embrace of torture." Given that "there is no dispute that there was torture, that it was systematic, and that it was encouraged at the highest levels," as Bush boasts in his best-selling memoir, there is no reason for not appointing a truth commission "charged with compiling the record, affixing responsibility, and formally acknowledging what was done."
With Republicans asserting that Obama's actions are vindicating Bush's detention policies, the refusal of the Obama Administration to look backward is increasingly problematic. (See The Pitfalls Of Only Looking Forward.) As Hertzberg concludes, "even with all the failings of the current Administration, the difference between its approach and its predecessor’s is the difference between night and day, albeit a rainy, miserable day, overcast with dark clouds. But, by elevating amnesia to official policy, the President has put himself in a poor position to make even that argument."