Published on Tuesday, March 8, 2011 by The Guardian/UK
Obama's Guantánamo Policy
: Legally and Morally Corrupt
The White House insists it's making the best of a bad lot. But technocratic tinkering fails to address the basic moral anomaly
In the nine years since the opening of the
In contrast to its predecessor, yesterday's executive order was anything but pathbreaking. It tacitly acknowledged that the premises of detention in the "war on terror" begun by the Bush administration in the fall of 2001 still hold. More tellingly still, it demonstrated that the Obama administration now not only accepts the fact of Guantánamo's existence as a given, but has also abandoned any debate over whether or not indefinite detention should be the policy of the land.
Under this new detainee review plan, the blueprint set out nearly a decade ago remains. At the outset, the underlying rationale for detention at
Admittedly, the executive order requires certain measures of fairness going forward
Even these reforms, however, are merely a formal statement of what has developed over time at Guantánamo. In sum, then, the basic premise of this new executive order is that the Obama administration has created as rational and fair a system of detention and review at Guantánamo as is possible.
In light of these reforms, it is no surprise that the administration on Wednesday also repealed its two-year ban on military tribunals at
The Obama administration's basic premise in both the new measures is that they have thought carefully for two years about how to resolve the remaining 172 cases at Guantánamo. The result of these deliberations is that they have devised an improved bureaucratic structure both for deciding whether or not to try these individuals and for mounting their trials. But the fact is that no technocratic reform of procedure can address the central problem of Guantánamo. It is not philosophically or morally possible to make better the indefinite and extra-legal detention of individuals who have not been formally accused of a crime or who are not detained under a category recognized by international law.
Guantánamo began without the concern for distinguishing guilt from innocence. Over nine years, two administrations have grappled with the initial mistake of not determining the status of those who were brought to Guantánamo in the first place. In the new review process outlined by the president, an acceptance of the inability to make that distinction lingers. The military commissions process may seem like a solution. But it may very well not be. Out of a total of 800 detainees, there have been six convictions in nine years at
This week's announcement – a list of procedures with no attempt to address the fundamental moral, legal and philosophical dilemma that underlies Guantánamo as much now as on the day it opened – is merely bureaucratese for the fact that Guantánamo, and all that it represents, is here to stay.
© 2011 Guardian News and Media
Karen Greenberg is the Executive Director of the Center on Law and Security at the
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs