On Terror Suspects and State Secrets Obama Administration Now Agrees With Bush by Gregory Hilton

President Obama Signs an Executive Order Closing Guantanamo Bay Prison

President Obama Signs an Executive Order Closing Guantanamo Bay Prison

On Terror Suspects and State Secrets Obama Administration Now Agrees With Bush by Gregory Hilton–The treatment of detainees at the Guantanamo Bay terrorist detention center in Cuba was a significant issue during the 2008 presidential campaign. Concern for the detainee’s treatment was frequently cited as an example of the sharp differences between the two political parties. It was portrayed as an example of how real change would be brought to White House with Barack Obama’s election.
President Obama frequently made this claim and on his second day in office he signed an Executive Order calling for Guantanamo’s closing within a year. The national news media described the action as a complete reversal of past policies, but so far the differences appear to be minute.
During the past two weeks the intense partisan debate over Gitmo largely evaporated on Capitol Hill. Attorney General Eric Holder, Solicitor General-designate Elena Kagan and CIA Director-designate Leon Panetta all endorsed policies implemented during the Bush era. The detainee issue was raised during the presidential debates when Obama said “what we have is a flawed system.” His campaign web site said: “Barack believes we must protect the principles which have created and sustained our freedoms for over two centuries because we cannot truly protect America without preserving the Constitution, the writ of Habeas Corpus, and the Bill of Rights.”
The Obama campaign’s foreign policy spokesperson was Susan Rice, who is now the U.S. Ambassador to the United Nations. Speaking of Bush’s policy on detainees, Rice said the “Administration has for seven years pursued a stupid and fundamentally failed policy. The way you deal with it is not to hold somebody in violation of our Constitution, indefinitely in detention and never convict them.”
Senator John Kerry (D-MA) said Osama bin Laden should have habeas corpus rights if he were captured and sent to Guantanamo Bay. Both Rice and Kerry quoted arguments developed by the American Civil Liberties Union.
The Senate Judiciary Committee is now considering Elena Kagan’s nomination to be the new U.S. Solicitor General. She is currently the Dean at Harvard Law School, and many believe she will eventually succeed Ruth Bader Ginsburg on the Supreme Court.
In sharp contrast to the 2008 debate, Kagan and Attorney General Holder both say the government can hold suspected terrorists without criminal charge or trial as war prisoners. They opposed the position of the American Civil Liberties Union and said they were in agreement with the Supreme Court case of Hamdi v. Rumsfeld which recognized the power of the government to detain unlawful combatants until the cessation of hostilities.
Attorney General Holder also promised Senators he would not bring prosecutions against Guantanamo interrogators. CIA Director-designate Panetta went even further by saying some al Qaeda detainees are “too dangerous to stand trial.”
During last year’s campaign John McCain also supported the closure of Guantanamo, and President Bush advocated the same thing in 2006. Bush said “I would like to close Guantanamo. … We are a nation of laws. Eventually, these people will have trials and they will have counsel and they will be represented in a court of law.”
The Bush Administration was not able to close Gitmo because some of the detainees’ homelands refused to take them back. Those who were willing to do so would not provide credible assurances they would take steps to prevent the detainees from returning to terrorist activities. Another major problem was bringing to trail detainee cases where there was a lack of admissible evidence because of national security concerns.
Of the detainees who were released from Gitmo, 62 out of 550 returned to terrorist activities. That figure does not include those who only engaged in propaganda.
The Obama Administration is clearly beginning to appreciate the dilemmas confronting their predecessors. The Obama campaign website contained a “Plan to Change Washington.” It said “the Bush Administration has ignored public disclosure rules and has invoked a legal tool known as the ‘state secrets’ privilege more than any other previous administration to get cases thrown out of civil court.”
In a case before the United States Court of Appeals for the Ninth Circuit on Monday it was the Obama Administration invoking state secrets and supporting Bush’s position regarding torture abroad. The Obama attorneys said state secrets and national security would be put at risk if the court allowed the suit to proceed. No part of the case was allowed to be litigated “without risking a national security breach,” said an Administration spokesman. They were in effect saying national security concerns trump the due process of law.
Anthony D. Romero, executive director of the American Civil Liberties Union, which is representing the alleged terrorists said: “This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”

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