As President-elect Obama works to make good on his promise to shut down Guantanamo Bay, including the military commissions system that his predecessor put in place, and which has become the butt of worldwide ridicule, the Defense Department’s close-knit circle of neoconservatives is busy laying traps and bombs to obstruct Obama’s plans. Their objectives are clear: they want to push the process of the commissions as far as they possibly can so that by January 20, Obama is presented with a fait accompli. This strategy has led, among other things, to the extraordinary meeting arranged among defendants at Gitmo to push them into guilty pleas; next, I expect to hear still more charges and cases announced in advance of the transition in power in Washington. But of course if the 9/11 defendants really do want to plead guilty, that’s all the more reason for this to occur in a federal court context, where the process and the punishment stand some chance of being viewed credibly by the world. Adam Zagorin at Time reports:
carrying the banner for that process is Brig. Gen. Thomas W. Hartmann, 53, a lawyer and Air Force reservist who as the top legal adviser and chief administrator of the trials, has managed to put 17 complex war crimes cases on the docket in less than 18 months. Now, Obama’s promise to shutter the facility seems to have spurred Hartmann to even greater activity. Motions and hearings are currently underway in at least half a dozen cases, and this week Gitmo authorities will host an emotional, made-for-TV moment: the first-ever visit to the trials by families of the victims of Sept. 11. Meanwhile, Hartmann’s office confirms that more terrorism trials will be announced sometime before Obama’s inauguration.
After years during which prisoners were held without trial, the question is whether this surge in prosecutions and publicity is a case of due process finally starting to work—or a hurried effort designed to tie Obama’s hands as he tries to shut the facility. Once they are under way, Obama could find it politically and legally difficult to stop the controversial proceedings or shift them out of Guantanamo.
For the past year, Hartmann has consistently defended himself against criticism by saying that he is simply doing the bidding of his bosses—in particular the neocon general counsel of the Department of Defense, Jim Haynes, who recently left to assume a middle-management post at Chevron, and his successor, Daniel J. Dell’Orto. Now Hartmann is reportedly the subject of an internal probe into possible ethics violations connected with his management of the Guantanamo caseload (which resulted in three separate military judges requiring his removal from the cases they oversaw).
All of this shows that the Bush Administration has saved the best act in its Guantanamo puppet theater for last, adding at least a touch of drama to the Texan’s protracted recessional. Today, Bush Gitmo apologists Ben Wittes and Jack Goldsmith tell us in a piece in Slate that Obama will soon be sympathizing with Bush because his options on the many “hard questions” that confront him will not allow him to deviate as much from the Bush line as he may hope. They warn that if the trials move to federal court, defendants might actually be acquitted (an outcome which they apparently believe can be foreclosed entirely in a military commissions process, which notoriously was the view of Goldsmith’s erstwhile boss, Jim Haynes) or get short sentences. The pair disclose a distinctly low level of confidence in the federal criminal justice system. And Wittes advises that he is serving as an advisor to the Obama transition team, to boot. Meanwhile at Salon, Ben Wizner and Jameel Jaffer take a different approach, urging Obama to stick to his guns.
I find it amazing that seemingly serious folk like Wittes and Goldsmith are so quick to embrace or at least try to salvage elements of the Bush regime and so dismissive of the idea of justice. I believe the system and approaches the United States had in place before the Bush tinkering began are more than adequate to the task and enjoy broad international recognition. In the end, the role of justice cannot be read into the margins without serious repercussions both to America’s image and security. Indeed, looking over the wasteland of eight years of Bush legal machinations, the contempt his administration has for justice is unmistakable.