The Ultimate Reversal

The Wall Street Journal (Mar 8) ran with an almost smug opinion piece on the subject of President Obama’s latest policy reversal.  ‘Obama ratifies Bush’.  We can change?  Perhaps only in small ways, and in some cases, not at all.  The ultimate reversal has taken place, and the nervous imperium abandons yet another one of those high minded platforms in dealing with its unsportsmanlike enemies, both putative and fictitious.

When President Obama came to office, he claimed that the facilities at Gitmo would be closed by Jan 22, 2010, arguing on the campaign trail that Bush ran ‘prisons which lock people away without ever telling them why they’re there or what they’re charged with’.  Congress, more concerned with the pragmatics of things, has been stonewalling.  For one thing, there is a degree of concern as to where the detainees are going to be put once the facilities have closed down.

Washington has been keen to offload its supposedly toxic detention cargo, something that other countries are simply not willing to assume.  And, if detainees will be brought within the federal court system, the appellate rights system is activated.  Few people, even the most dedicated of wets, will want that.  Indeed, it was a Democrat controlled Congress that barred funding for the transferral of detainees from Gitmo to US soil.  The Republican variant is hardly going to be different on that score.

Observations by some members of the media suggest that such a reversal will do little to flatten Obama’s reputation on the left.  It won’t, as Frank James of NPR (Mar 8) argues, ‘hurt him politically.’  (Mr James, how could it?  The US has no operative left to speak of.)  Sweet, soda pop hope has been replaced by a shallow, bitter brew.  This, after all, is politics, ladies and gentlemen of either right wing of the American political landscape.  Jobs and the economy come before the legal niceties of questionable detention practices.

So, as he has done for the duration of his administration, Obama will try to patch things up – from a position of stumbling retreat.  The light on the hill remains – he will eventually close Gitmo, though he is incapable of doing so at the moment.  In the meantime, a mid-point can be reached: the detention centres will be brought closer into line with the Geneva Conventions and the US constitution.   In a crude compromise to the liberals, he has decided to endorse the 1977 revision to the Geneva Conventions called Article 75 of Protocol 1, which eliminates the distinction between lawful and non-lawful combatants.  This is not something that will thrill supporters of the necessary distinction between those in and out of uniform.

In short, the idea of the military commission, battered, bruised and assailed in so many sections of the legal community, has been reborn.  Obama’s officials are hoping to provide some heavy window dressing seeking to show how different their ideas are from those of the Bush administration.  But as has already been pointed out, by the WSJ amongst others, the Military Commissions Act of 2006 already had included ‘administrative review boards’ in its process of review.

There are still considerable gaps which lawyers of the civil rights persuasion will find troubling.  There is no direct review by a judicial body of the new board suggested by Obama.  Nor does it set out a process for dealing with non-Gitmo detainees, a critical matter given that the web of detainees in this so called ‘war’ on terror is a wide one.  We are, it seems, painfully back to where we started when lawyers of the Bush administration began their demolition job on the rights of terrorist suspects, and the only one who will be smiling here, if he cares to do so, will be George Bush himself.




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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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