Deborah Pearlstein suggests there's too much being made of the Obama administration task force on detention delaying their report, and ultimately the closure of Guantanamo Bay Prison for at least six months, pointing out that the original executive order contemplated that possibility.
However, what's frustrating about the preliminary reports released is that much of the problems with the Obama administration's policies--the use of military commissions. The report twice uses the phrase "where feasible" in reference to pursuit of prosecution of suspected terrorists--as though prosecution were an option rather than an obligation. Moreover, while the administration appears to be restricting the use of military commissions to detainees captured on an active zone of combat, "[t]he principal factors that make the use of military commissions a distinct and appropriate forum lie in the military character of the proceedings and the nature of the offenses subject to their jurisdiction (i.e. violations of the law of war)."
However, a closer look at tab A of the preliminary report also reveals that consideration of the "appropriate forum" for prosecution is based on "the manner in which the case was investigated and evidence gathered" and "legal or evidentiary problems that might attend prosecution in the other jurisdiction." This suggests that who gets charged by military commission is likely to be far more arbitrary than simply "those who violate the laws of war." In fact, since the United States has effectively declared war on al-Qaeda, it's possible to see the government making the argument that any and all members of that organization have violated the law of war, since their methods would make them war criminals in a war context. So despite the fact that the report aims to "clarify" the nature of the military commissions and how they would be used--it doesn't, at least not yet.
"I would push for a very narrow standard for military commissions - only for battlefield crimes that are not appropriate for trial in civilian courts. That would eliminate any sense that military commissions are chosen because its easier to secure a conviction than federal court," says Ken Gude of CAP over e-mail. "That's what the Obama administration has to convince Americans and the world it has rejected -- the belief that military commissions are second class justice and the more expedient avenue to conviction."
I still don't know that we need them in the first place.
-- A. Serwer
