What to do, what to do... about Guantanamo?

By Carol Gee

Closing the Guantanamo Bay detention facility will be one of the most difficult challenges of the Obama administration. His own staff has been divided on how to do it. FBI Director Robert Mueller worries about detainees in U.S. prisons. Michele Flournoy, number three at the Pentagon, maintains that the U.S. must set the right example before our allies will accept detainees for repatriation. Rendition has been another matter, entirely, in the past when the Bush administration implemented the practice of rendering U.S. prisoners overseas to other countries where they were interrogated under torture.

How other law abiding countries handle suspected violent extremists offers a contrasting picture of how it is managed by the United States. The legal fallout over this has sent cases to court (in particular the Jeppesen/ACLU case). The Obama DOJ has asked a federal appeals court to block the case, claiming "state secrets" necessitate throwing out the case, taking up the claim of the previous administration. On June 22, federal judge Richard Leon ordered Abd al Rahim Abdul Rassak, a Syrian held by the U.S. for years, released because he was a victim of torture by al-Qaida. He "emphatically rejected the government's claims against Rassak. . . adding that U.S. officials are taking a position that defies common sense."

How will the U.S. continue to handle violent extremists? Earlier this month Glenn Greenwald analyzed the current practices of many countries, contrasting them with the administration's probable call for indefinite detention by the U.S. He concluded that, "numerous other countries are, with their actions, adhering to the values and principles which we, with words, righteously claim to embody." Now the White House has drafted an executive order reasserting presidential authority to incarcerate suspects indefinitely, bypassing Congress, according to The Washington Post's Peter Finn and ProPublica's Dafna Linzer. To quote the lead:

Such an order would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the U.S. military prison at Guantanamo Bay, Cuba, White House officials are growing increasingly worried that reaching quick agreement with Congress on a new detention system may prove impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January 2010 deadline.

Is Bush precedent Obama precedent? Zachary Roth at TPM Muckraker had this chilling conclusion to the news of the draft memo: "If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent." It need not be that way. The Constitution has been a powerful bulwark with plenty of capacity to sustain the rule of law, particularly with a president whose specialty has been Constitutional law.

(Cross-posted at South by Southwest.)