Two years after President Obama put a halt to new cases, military commissions at Guantanamo Bay Naval Base are back. At least, that’s what the White House says. The move, if true, is a nod to political reality. Whether it’s more than a nod, however, only time will tell.
The Obama administration has directed Secretary of Defense Robert Gates to lift an order suspending the referral of cases to commissions. With dozens of commission-eligible detainees languishing in Gitmo, the president’s strategy of blocking commissions -- in favor of civilian trials that may never take place because of congressional restrictions -- was looking more cynical and unrealistic by the day. Restarting the commissions is the only sensible way of starting to clear the logjam.
At the same time, the White House released an executive order laying out new and improved periodic review procedures for Guantanamo detainees who have lost their civil habeas cases in federal district court. They’ll get a “mini-civil-trial” on a periodic basis, the results of which will inform the executive branch as to whether the detainee can be transferred safely.
The timing of the combined announcement was designed to blunt the left’s predictable anger over a resumption of military commissions, which are anathema to some liberals and most human-rights activists.
Still, the left has some reason to celebrate. The executive order represents an about-face of sorts for the president. In a May 2009 National Archives speech, he promised to work closely with Congress to craft a comprehensive approach to long-term detainment issues; a plan that I and others had repeatedly called for prior to his speech. That plan, working with Congress instead of “going it alone” cowboy-style, fell by the wayside. Creating a post-habeas review system by executive order (i.e., going it alone) is less permanent than hard-to-repeal legislation -- a naked sop to liberals within and outside the administration who, until now apparently, abhorred executive orders in detention matters.
The executive-order route also enabled the administration to get exactly what it wanted, rather than going through the normal give-and-take of the legislative process. Congress may well have passed a law authorizing this administration, or the next, to capture terrorists and detain them outside of Afghanistan. Now that’s off the table, at least for now.
Conspicuously absent from the announcement was any mention of who will be referred to future military commissions. If the administration intended to rope in high-value detainees such as Khalid Sheikh Mohammad, the architect of 9/11, now would have been an opportune time to do so.
Recall that Attorney General Eric Holder announced in 2009 that Abd al-Rahim al-Nashiri, the planner of the USS Cole bombing, would go to a commission trial. His case has remained in legal limbo since 2009, but is one of the most likely ones to be referred to a commission in the coming days. But if al-Nashiri is a prime candidate for the newly energized commissions, the administration is not saying so.
On Monday, the administration held a courtesy conference call for the families of 9/11 victims to let them know about the resumption of military commissions. They have been waiting, indeed begging for justice for 10 years. When family members predictably asked for details, particularly whether KSM or other high-value detainees would be included in a future commission case, the administration’s liaison dissembled before stating that the White House “remains committed” to using civilian courts for the worst-of-the-worst terrorists.
Still, these announcements are a step in the right direction for those of us who support the responsible use of military commissions for appropriate cases, and fair procedures for detainees who lose their habeas cases.
Charles "Cully" D. Stimson Charles “Cully” D. Stimson is a leading expert in criminal law, military law, military commissions and detention policy at The Heritage Foundation’s Center for Legal and Judicial Studies. Before joining Heritage in 2007 as a Senior Legal Fellow, Stimson served as the Deputy Assistant Defense Secretary for Detainee Affairs, where he advised the Secretary of Defense on detainee issues worldwide, including at Guantanamo Bay, Iraq and Afghanistan.