“No part of President Obama’s agenda has been as thoroughly repudiated as the one regarding terrorist detainees,” the Wall Street Journal has editorialized. That verdict seems reasonable given Mr. Obama’s unfulfilled pledge to close Guantanamo Bay, the administration’s reversal of the decision to try Khalid Sheikh Mohammed in Manhattan, and the near acquittal of Ahmed Ghailani in a civilian trial earlier this year.
But the editorial also reports this: White House aides say they are working up an executive order to allow the U.S. to hold enemy combatants indefinitely. “One reason Mr. Obama has been forced to allow indefinite detention is because he seems unwilling to allow more military commission trials at Guantanamo,” according to the Journal.
That is an extraordinary turn of events. Mr. Obama ran for president by lacerating his predecessor for acting in ways that were, he said, lawless and unconstitutional, in violation of basic human rights, and an affront to international law, and in ways that discredited and disgraced America’s name around the globe. And now we learn that Mr. Upholder of International Law himself, Barack Obama, is going to continue his policy of holding enemy combatants indefinitely.
At least the Bush policy of military tribunals, which was based on wartime precedent and previous Supreme Court rulings, allowed suspects a lawyer and a trial by jury. When in 2006 the Supreme Court struck down military tribunals (in Hamdan v. Rumsfeld), the Bush administration and Congress effectively rewrote the law, passing the Military Commissions Act of 2006. The administration was trying to find the right balance between indefinite detention on the one hand and not providing suspected terrorists with the full array of constitutional rights an American citizen possesses on the other. (The Supreme Court’s 2008 terribly misguided ruling in Boumediene v. Bush, which for the first time in our history conferred a constitutional right to habeas corpus to alien enemies detained abroad by our military force in an ongoing war, made striking this balance far more complicated.)
President Obama, because he appears unwilling to allow military commission trials at Guantanamo, seems to have settled on indefinite detention. This is a significant moral step backward.
Under the Obama regime, suspected terrorists have no rights and no recourse. It also means that terrorists who deserve to be convicted and punished for their malevolent acts will avoid that judgment. In the withering words of the Journal editorial, “Nazis Hermann Goering and Adolf Eichmann were sentenced to hang for their crimes, but KSM and Ramzi bin al Shibh get three squares a day and the hope that someday they might be released.”
Even allowing for the fact that governing is a good deal more difficult than issuing campaign promises, the Obama administration’s incompetence is striking, its course of action indefensible. The president has once again made a hash of things.