Twenty-eight or more of the remaining 166 inmates at Guantanamo are on a hunger strike. They have lost hope that President Barack Obama will fulfill his promise to close the prison camp, now 11 years old, and end their legal limbo. At least 86 of these captives were approved for release years ago, and still they wait.
What to do about the detention camp at Guantanamo Bay, Cuba, is a tragic puzzle with no clear solution. Like the war of adventurism in Iraq and a domestic economy in free fall, President George W. Bush left behind this towering mess for Obama to clean up.
Raw politics have stymied Obama's efforts to close Bush's Bastille. Congress has imposed completely unjustified restrictions on the movement of Guantanamo detainees to the United States for trial or even for repatriation or settlement in other nations. A Fox News echo chamber equates Guantanamo's closure and detainee prosecutions in U.S. civil courts with being soft on terrorists, an absurd but effective allegation.
Attorney General Eric Holder had to quickly retreat from a plan that caused a political firestorm to bring self-declared 9/11 mastermind Khalid Sheikh Mohammed and other top al-Qaida commanders to trial in federal court in Manhattan. The men are now being tried in Guantanamo by a military commission process that, while much improved since Bush's initial plan, is an inferior system of justice with dubious international legitimacy.
Military commissions have also been an abject failure as a tool to bring terrorists to justice. The bleating by Fox News aside, the federal courts have proven to be a far more dependable and, yes, punitive forum. Since 9/11, federal criminal courts have convicted nearly 500 individuals on terrorism-related crimes, according to the Justice Department, with some cases resulting in life sentences.
Compare that to the slow and muddled process of the military commissions, which have obtained seven convictions out of the 779 prisoners who have been held at Guantanamo, five of which were part of plea agreements.
Of the seven convicts, three are walking free. And two of the seven convictions have been set aside by a federal appellate court, with another one under challenge. The D.C. Circuit court, one of the most conservative in the country, held that the convictions on material support for terrorism and conspiracy were not recognized international war crimes, which the commissions were constituted to apply. (The administration is appealing.)
How the commissions came about, and the courageous military lawyers who tried to raise alarms about them, is a riveting morality tale. Read an account in The Terror Courts, Rough Justice at Guantanamo Bay, by Wall Street Journal Supreme Court reporter Jess Bravin.
Why would a nation whose moral authority as a world leader derives from its commitment to the rule of law and due process establish a parallel legal system for foreigners only, designed to bend whatever rules are necessary to obtain a conviction? Here's why: Vice President Dick Cheney, his legal attack dog David Addington and apparatchik John Yoo saw military commissions as the culmination of the president's king-like authority. The Bush administration wanted "a permanent legal structure under the president's sole command," Bravin writes, with the power of life and death.
Bush's commissions were legal cover for his campaign of torture and unlawful detention with no basic due process, such as the presumption of innocence or the right against self-incrimination. Evidence obtained through prisoner abuse could be used as long as it held "probative value to a reasonable person."
Bravin writes that when the military's top uniformed lawyers first saw the draft of Bush's plans they were shocked. Army Maj. Gen. Thomas Romig offered a one-word assessment: "insane."
Multiple revisions under Obama have bettered the military commissions, but Obama is right to bring new terror suspects to justice in civil courts. Recently Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden, and Ibrahim Suleiman Adnan Adam Harun, a Saudi native with Nigerian citizenship, were brought to New York for trial on murder conspiracy charges.
But the problem remains of what to do with the 166 men remaining in Guantanamo. In his second term, with no more elections to face, Obama must confront the congressional wall of opposition and end indefinite detention through trials or release. Bush's mess can't be allowed to stain us all forever.