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http://www.washingtonpost.com/wp-dyn/content/article/2011/03/07/AR2011030704425.html
Obama's new Gitmo policy is a lot like Bush's old policy
By Dana Milbank
Washington Post Staff Writer
Tuesday, March 8, 2011;
It was another important moment in the education of Barack Obama.
He began his presidency with a pledge to close the military prison
at Guantanamo Bay within a year. Within months, he realized that
was impossible. And now he has essentially formalized George W.
Bush's detention policy.
With Monday's announcement that the Obama administration would
resume military tribunals at Gitmo, conservatives rushed out
triumphant I-told-you-sos. Liberal supporters again felt betrayed.
Administration officials had some 'splainin to do.
And so they assembled some top-notch lawyers from across the
executive branch and held a conference call Monday afternoon with
reporters. The ground rules required that the officials not be
identified, which was appropriate given their Orwellian
assignment. They were to argue that Obama's new detention policy
is perfectly consistent with his old detention policy.
Not only had he revoked his pledge to close Gitmo within a year,
but he also had contradicted his claim that a detention policy
"can't be based simply on what I or the executive branch decide
alone." His executive order did exactly what he said must not be
done, in a style favored by his predecessor in the Oval Office.
"This detention without trial - what's different from the Bush
administration?" a French reporter from Le Monde asked on the call.
Good question. The answer, from the Anonymous Lawyers, was
technical: "We have a much more thorough process here of
representation. . . . There's an opportunity for an oral
presentation to the board."
CBS's Jan Crawford was not impressed with this answer. "What
specifically is different in this than what we were living under
that was so bad in the Bush administration?" she asked.
Anonymous Lawyers replied that cases would be reviewed every six
months instead of every year. They also spoke about their "intent
to comply with Article 75 of Additional Protocol One."
This still wasn't working for Yochi Dreazen of National Journal.
"It seems like what is happening now with this executive order is
effectively ratifying the status quo," he said. "Is that a fair read?"
The Anonymous Lawyers did not think this was a fair read. Over and
over again, they repeated their theme: "The basic message is the
National Archives speech remains the framework under which
Guantanamo closure is being done."
Oh? Let's review.
Anonymous Lawyers were referring to Obama's speech at the National
Archives in May 2009.
There, he said: "Rather than keeping us safer, the prison at
Guantanamo has weakened American national security. It is a
rallying cry for our enemies. . . . By any measure, the costs of
keeping it open far exceed the complications involved in closing
it. That's why I argued that it should be closed throughout my
campaign, and that is why I ordered it closed within one year."
It was then, too, that Obama said detention policies "can't be
based simply on what I or the executive branch decide alone. . . .
In our constitutional system, prolonged detention should not be
the decision of any one man. If and when we determine that the
United States must hold individuals to keep them from carrying out
an act of war, we will do so within a system that involves
judicial and congressional oversight. And so, going forward, my
administration will work with Congress to develop an appropriate
legal regime."
In a sense, Monday's announcement was an acknowledgment that Obama
had set expectations unrealistically high during the campaign and
early in his term. "The president has now institutionalized a
process that a lot of his political base imagined he was going to
get rid of," said my former Post colleague Benjamin Wittes, now a
Brookings authority on detention policy.
Less easy to fathom is Obama's unwillingness to involve Congress
in creating his new detention regime, as he had promised. As Obama
himself argued, the procedures won't have legitimacy without
"judicial and congressional oversight."
The Wall Street Journal's Evan Perez asked the Anonymous Lawyers
about this during the teleconference. He pointed out that Obama,
in his Archives speech, "hinted at" a court review for indefinite
detentions.
"I'm not quite sure what . . . you think the president hinted at,"
one of the Anonymous Lawyers answered.
And how about working with Congress? An Anonymous Lawyer said that
this was a "discretionary executive act" that is "well within the
authority . . . of the president."
Funny, that's just what Bush's lawyers used to say.
danamilb...@washpost.com
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