Posted by MataHarley on 27 January, 2009 at 12:55 am. 22 comments already!

In an effort to effect the promised “change”, the Obama administration embraced the Presidential authority of Executive Orders and began distancing itself from Bush administration policies… from lifting bans for abortion funding to the more notable and heralded closing of Guantanamo Bay as soon as possible, but no later than one year.

What to do with prisoners either picked up on the battlefield, or arrested via intel, is no new quandary, and one legal pickle faced by President Bush. Obama, however, has seen fit to minimize the legal complexities.

In truth, the appearance of immediate reversal of the controversial detention policy was little more than a photo op. The promise to close the facility was inked, but the details on what to do with the detainees vague. Per the EO language on the closure, any remaining detainees at the time of closure were to be released, or transferred… somewhere. And anyone not fitting those two categories were to be prosecuted… again somewhere under some court determined by a “review” and an appointed Special Task Force (see the second related executive order, Review of Detention Policy Options).

So where are we? All prosecutions and tribunals are put on hold for 180 days (2nd EO), and we still haven’t got a clue as to what will happen to the current denizens of “Club Gitmo”. All we do know is that Obama promises to close the facility within a year.

But reality has collided head on with Obama’s magic photo op of “change”. As Mike’sA noted in his Jan 23rd post, Said Ali al-Shihri was released Nov 2007, sent to Saudi Arabia, and emerged this past weekend on a jihadist website. He’s gainfully employed again … now the deputy leader of al-Qaeda’s Yemeni branch.


Shihri is suspected of involvement in a bombing at the US Embassy in the Yemeni capital Sanaa in September, which killed 16. Indeed, per his own quote, he admits his guilt prior to his incarceration in Cuba.

“By Allah, imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for,” al-Shihri said on the video.

There may not have been enough evidence for a conviction in a military tribunal, but there is no doubt today that Shihri was exactly where he belonged… locked up, and kept away from the battlefield. Had he stayed there, 16 people may well be alive today.

It was but a day later when another man identified in the same video with Shihri, was ID’d as yet another Club Gitmo grad… Abu Hareth Muhammad al-Awfi.

Their emergence had the effect of raising a few eyebrows, but not enough to rattle the Democrat Congress in their faith of the new President. But wait… there’s more… It will warm your heart to know that Yemen is anxiously awaiting to repatriate 94 of the Gitmo detainees… with promises they won’t return to jihad, of course. Considering how good a job they did with Shihri, I won’t be holding my breath on their assurance for the 94 incoming…

Think I’m done yet? Nope…

In the past 48 hours, Saudia Arabia has re’arrested nine Islamic militants, including – yup – more of the Gitmo graduating class. Per Tim Reid and David Charter in the London TimesOnline:

President Obama’s plan to close Guantánamo Bay within a year appeared to be unravelling yesterday with the emergence of former inmates on terrorist websites, fierce opposition in the US and a lukewarm response to taking detainees from the European Union.

After signing an executive order last week to close the US military prison, Mr Obama has been confronted with myriad obstacles that are making his ambitious pledge look unrealistic.

David Miliband, the Foreign Secretary, ruled out the prospect of Britain taking any more inmates, claiming that it had already made a significant contribution.

His announcement, at a meeting of EU foreign ministers, came as Saudi Arabia announced yesterday that it had rearrested nine Islamist militants, including former Guantánamo inmates released to the Kingdom who had undergone a re-education programme in Riyadh.

What comes to mind is… if these are they guys they let go, the unreleased leftovers have really got to be some slithering scum.

And we’re bringing them here to American soil?

Obama may have backed us into a corner, and the US may not have any choice. Austria, Sweden and the Netherlands have said no way, Jose to taking any of these prisoners. Britain’s David Miliband firmly states that with the last additional two inmates of British citizenship, the UK has done it’s part, and will do no more.

France is suggesting a central clearing house to sort out their future. Well isn’t that a terrific idea? Talk about a fertile jihad recruiting ground…. They can loiter around on the victims’ dime, perhaps with better food, and wait to be sprung by jihad buds into a new cell.

But one thing for sure… no one nation (except perhaps Yemen) is jumping for joy at the prospect of welcoming these new citizens. And as even more of these former grads show up in the news on the latest jihad video or website, it’s unlikely to get any better.

Which brings us to the US of A…. any detainees being transferred… and our federal court system. If the guilty are already confessing after the fact, but being released for lack of sufficient evidence, just what is going to happen in the US courts? Once free, will they be released into the US neighborhoods?

What can Obama be thinking?

As Columbia Law School’s Matthew Waxman points out:

The big question is what to do with any detainees who are too dangerous or heinous to send home but who cannot be effectively prosecuted. Some expect this category to be very small, maybe even zero.

Don’t rest assured.

The recent withdrawal of charges against the alleged “20th hijacker,” Mohamed al-Kahtani, due to his improper treatment at the hands of interrogators is but one example of the difficulties Obama will face. The government has expanded criminal statutes for terrorism since 9/11, and courts have gained experience in handling terrorism trials. But even when the information linking some of the most dangerous suspects to al Qaeda terrorism is reliable, it may not be usable or admissible in court.

If federal prosecutions aren’t workable in many cases, and releasing the most dangerous detainees is ruled out, the new administration has several options — all of them with significant downsides. It could continue to hold current and future detainees in U.S. facilities as “enemy combatants” and let current habeas corpus litigation continue through the courts. Or it could try to prosecute them in reformed military commissions with more lenient evidentiary rules. But both these options look much like the deeply discredited Bush administration policy, only moved inside U.S. borders.

Another option would be to work with Congress on new legislation authorizing “administrative detention” for periods of time of a carefully limited category of detainees, pursuant to strict standards and robust judicial review. Opponents of this approach justifiably worry that such laws would institutionalize detention without trial.

As AP’s Anne Flaherty reported a couple of days ago, the Obama admin *does* plan on pow wowing with Congress on options…. and if you can find consensus among 100 Senators and 435 Representatives, the nation may find itself right where George W Bush had us to begin with… except sans a place to keep these guys because they slammed shut the gates to Gitmo.

Administration officials said that, pending an internal review, federal and military courts may be used. But, the officials added, a version of the secretive military tribunals, as established under President George W. Bush with the help of McCain, remains an option, too.

Officials say the tribunals may be needed to prosecute suspected terrorists who are too dangerous to release but whose cases would otherwise fail, either because evidence was coerced or trying them in a less secretive court would expose classified information.

Obama could take a page from the Bush administration and try to revamp the system on his own, through executive order. But that approach failed for Bush, who angered members of his own party and wound up seeking congressional approval anyway after the Supreme Court in June 2006 ruled his tribunal system was unconstitutional.

Obama’s other option is to seek legislation on the issue, potentially exposing his administration to a bruising fight with Republicans on how to handle the most dangerous of terrorism suspects.

Back in Nov, fresh from winning the election, Obama exuded more confidence and details on what to do with the bad guys.

President-elect Barack Obama’s advisers are making plans to close the Guantanamo Bay prison and prosecute terror suspects in the United States, a plan that the Bush administration said Monday was easier said than done.

Under the plan being drawn up by Obama’s advisers, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require creation of a new legal system to handle the classified information inherent in some of the most sensitive cases.

So here we are… no good way to try these guys in US courts, and no even worse way to try the worst of the worst. And the clock is ticking, because the walls come down in a year’s time.

Instead of being prudent and pragmatic, Obama is putting on a show for effect. The facility should remain open for business until all the i’s are dotted, and t’s are crossed on what’s to be done… and how… with these prisoners who have proven themselves to be far from innocent.

And it turns out I’m not the only one to see this fool hardy act as a photo op… Ben Johnson at Front Page Mag summed it up quite nicely last Friday.

At the signing ceremony Thursday, Obama said, “The message that we are sending around the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism, and we are going to do so vigilantly, we are going to do so effectively, and we are going to do so in a manner that is consistent with our values and our ideals.”

The actual message Obama sent is that the United States now places “world opinion” above its own well-being; that the commander-in-chief of the War on Terror is willing to grant the other side tactical advantages; that the leader of the free world acts on image without thinking out the practical consequences his actions might have for his country or his soldiers.

The only silver lining is the president’s hypocrisy. Thursday’s signing ceremony was the triumph of style over substance, of emotional masturbation over hard-headed analysis, of the politics of guilt over the duty of self-defense.

It was certainly no way to inaugurate a new era of responsibility.

I can only add, this is not “change” we need.

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