Gitmo Disappointment Coming

Of course, the default position for any citizen with a modicum of experience and common sense should be to prepare to be disappointed by a politician, especially one in whom one was rash enough to invest much hope. We are already seeing a certain amount of backing and filling from the Obama camp on withdrawal from Iraq, and he has verbally committed us to a more extensive war in Afghanistan with incursions into Pakistan, a campaign promise that, in part because of its capacity to increase anti-Americanism in Pakistan, we may hope is honored with a typical politican's fealty to promises.

From the standpoint of sheer political calculation, Barack Obama was shrewd to keep his campaign rhetoric vague, focusing on hope without much content and audacity without specifics. He now has a more credible mandate than Dubya ever had and room to maneuver without anyone being able to pin him down on specific promises being broken. So he can deliver a moderate-left economic program or embark on an ambitious New New Deal without being accused of going back on his word.

Even in areas where he has been reasonably specific, we should prepare to be disappointed, if only because unexpected developments always occur. Obama will not necessarily have to be dishonest: circumstances could easily turn out to be more complicated than was acknowledged in campaign rhetoric. One of those is the shameful prison camp at Guantanamo Bay in Cuba.

President-elect Barack Obama says he wants to close the Guantanamo Bay detention camp (something GOP candidate John McCain supported as well), and last Monday the Associated Press reported that that his advisers are "quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials."

Closing the book on this dark episode, which has tarnished our image and our sense of the U.S. as a fundamentally decent country, would be welcome. But it is unlikely to prove an easy task, and one doubts whether Barack Obama will be able to accomplish it anytime soon.

For starters, Obama's reported plan applies only to those who face domestic criminal charges, or roughly 80 of the 255 men still being held at Guantanamo, at least according to Bush administration figures. That leaves another 175, and the Bush administration believes at least 100 of these would pose a danger if released. The default tendency should be to assume the Bushies are exaggerating, of course, but it is still quite likely that at least some of those held at Guantanamo might well return quickly to violence or activities designed to harm American interests (however defined) almost immediately.

The question of where various detainees, from those who have essentially been cleared of being active terrorists to those who are credibly suspected of nefarious activities but whose misdeeds might not be provable in either a military or a civilian court, might be released is nowhere near close to resolution.

Some 100 of those at Guantanamo, for example, are originally from Yemen. If they are returned to Yemen, then the U.S. would like the Yemeni government to charge, imprison, or closely monitor them. But after months of negotiations no agreement has been reached.

If some of the prisoners are released to their home countries, they would likely face outright torture, much worse than anything they might have experienced at Guantanamo. In 2006 the U.S. sent two prisoners to Tunisia with the explicit understanding that they would not be tortured or mistreated. The Tunisian government broke its promise and inflicted cruel treatment and kangaroo-court trials.

So we might try 80 of 255 in civilian courts. What about the rest? Some commentators want the usual prisoner-of-war customs to prevail. That would justify simply continuing to detain certain prisoners until the end of hostilities, without the necessity of charging or trying them. Of course many advocating this course of action were among the first to defend the administration decision not to grant them POW status, apparently because providing such status could have restricted the intensity of interrogations they wanted to conduct.

A big problem with the keep-'em-until-the-war-is-over line is the amorphous nature of the "war on terror." Obviously, it can't continue until every terrorist or would-be terrorist in the world is killed, captured, or neutralized – or can it? If that's the criterion, then the war – which has never been declared according to the apparently quaint and outdated procedures that used to be required by the U.S. Constitution – will never end. Perhaps that's just what Dick Cheney had in mind as a way to beef up executive-branch power, but one hopes that is not Barack Obama's vision. But what if it is, or if he comes around to something similar?

A further complication is that no "third country" is eager to receive any of these prisoners, especially since the U.S., at least as of now, is unwilling to have any released on U.S. soil. Last month a federal judge ordered 17 Uighur prisoners, from a region in the west of China where an active revolt is underway, released in the U.S. Even though they would probably have posed no danger, an outcry ensued and the Justice Department got an appeals court to block the order. That's not exactly an action calculated to have other countries lining up eagerly to accept Gitmo prisoners.

There are also questions as to whether charges against even quite dangerous prisoners could be made to stick in a U.S. civilian court. Some of the problems may have to do with prisoners being tortured, others with not being read "Miranda rights" before being questioned, and others with cases where the authorities are pretty sure of the violent or illegal activities but don't have the kind of evidence that would stand up in a civilian court.

There is also the problem that some of the offenses, relating to aiding and abetting terrorists and the like, didn't become illegal in U.S. statutes until after the 9/11 attacks and would therefore be ex post facto laws, written after the offense, which are prohibited under the U.S. Constitution. Few American political leaders consider the Constitution very actively these days, unless it is to find ways around the document's clear intentions of limiting the power and scope of government. But they don't like to commit violations that are too transparently flagrant, lest they completely undermine their frail claims to legitimacy.

All this highlights the foolishness of establishing the prison camp at Guantanamo without thinking through the possible ramifications thoroughly enough. But that mistake was made long ago, and it will not be easy to unravel.