After years of hyperventilating over it, Democrats are now coming to grips with the pitfalls of closing Guantánamo.
Now, as Mr. Obama moves closer to assuming responsibility for Guantánamo, his pledge to close the detention center is bringing to the fore thorny questions under consideration by his advisers. They include where Guantánamo’s detainees could be held in this country, how many might be sent home and a matter that people with ties to the Obama transition team say is worrying them most: What if some detainees are acquitted or cannot be prosecuted at all?
That concern is at the center of a debate among national security, human rights and legal experts that has intensified since the election. Even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted.
“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,” said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.
Professor David D. Cole certainly was a critic of the Bush administration. Here is a flavor of the good professor's opinion in May of 2006. You might say he was a purist back then.
Early on, the administration labeled the Guantanamo detainees "the worst of the worst." Yet we now know that more than 250 have been released, that they included boys as young as 13 and that of those who remain, only 8 percent are even accused of being fighters for al-Qaeda. The majority are not accused of engaging in any hostile acts against the United States.
Of course, back in 2006 there wasn't a snowball's chance in hell that preventive detainment legislation would ever make it through congress. For one thing it would have completely ruined the Democrats' primary political strategy, which was to call George Bush a villain at every opportunity. Congressional authorization for preventative detention? Or anything Bush proposed to do? Perish the thought!
Enter the One. Guantánamo inmates are suddenly seen in a new and unattractive light. Victims by comparison to George Bush, it turns out they might be dangerous, and maybe even unsavory.
Professor Goldsmith, who teaches at Harvard Law School, said in an interview that he believed the administration had correctly asserted a right to detain the men held at Guantánamo. But, he said, Congressional approval would “ensure that we can legitimate holding people for a long term.”
In the absence of such a law, any plan to move even some of the remaining 250 Guantánamo prisoners to the United States would require a careful analysis of the authority to hold the detainees, several of whom have said they would relish an opportunity to kill Americans.
In the end, the Obama administration may conclude that it is simply not feasible to seek a new preventive detention measure. Doing so could portray the new administration as following in the footsteps of President Bush, surely an unlikely goal as Mr. Obama sorts through his options.
Yes, Obama will have to weigh his options. Will he turn terrorists loose for the sake of his good appearances? There was never a doubt about the course Bush would choose. It must be some bizarre alternate universe we live in where Bush is vilified for winning a war and protecting Americans from terrorist attack, while Obama wins acclamation for considering his appearances.
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