George W. Obama

The United States president’s decision to resume the military tribunals for Guantánamo Bay detainees may be considered correct, domestically and tactically. But it is a disaster, morally and legally.

There are hundreds of reasons why Americans and the rest of the world find Barack Obama to be so terrific - because he is rhetorically brilliant and good-looking - and especially because of the one thing he promised: change. What sounded like an empty phrase for many during the campaign was expressed in a one-word wish around the world. It had to appeal to anyone who was sick of the last, eight, dreadful years of George W. Bush as president of the U.S. and supreme commander of the most powerful military in the world. This message was even considered to be radical.

Obama hit upon this, just like he did in his inaugural address. Obama, his vice-president, Joe Biden, and his secretary of state, Hillary Clinton, never missed an opportunity to point out that every bad past decision arose from the Bush era and, for this reason, things were going to be different in the future.

Now, however, Obama is adding a few serious kinks to this myth. He does not want to prosecute CIA employees who tortured terrorism suspects on behalf of the Bush administration. Despite a judicial decision to the contrary, the president does not want to release photographs showing American soldiers mistreating prisoners in Afghanistan and Iraq.

Promises Broken

And now Obama wants to resurrect military tribunals, as well - the same ones the Bush administration, in defiance of every established Western principle of law, had wanted to use to try suspected terrorists. This decision is not just another intelligent application of knowledge, but rather a regrettable weakness of a man who inherited a catastrophe.

This is definitely a situation where Obama has broken one of his central campaign promises. On many occasions, Obama clearly articulated his position against these kangaroo court proceedings. And now? Weren’t they just a fantastic idea, after all?

Not really. The tribunals Bush created are simply outrageous. They limited the rights of defendants to legal counsel, permitted hearsay as evidence, and allowed confessions extracted during torture. Anyone who defends these legal institutions should not criticize Islamic Sharia courts.

Admittedly, Obama does want to improve the tribunals. Statements that had been extracted with the aid of so-called waterboardings and other brutal interrogation techniques will no longer be allowed. This surely mitigates some of the outrage, but does not get him off the hook entirely. With all due respect and understanding for the tactics essential for domestic politics, his decision on the tribunals is counterproductive and unnecessary.

Broadly speaking, there are two types of prisoners in the American detention camps in Guantánamo, the Bagram Theater Internment Facility in Afghanistan, and everywhere else. Some of them were enemy combatants captured in battle by the U.S.. And others were terrorism suspects from around the world, who were captured and spirited away by American intelligence agents or soldiers.

What concerns American anti-war protestors about Afghanistan and Iraq is that no one can blame Americans for not wanting to release these combatants on the next street corner, only to watch them take up arms again the next day. This is why there are only two options for these prisoners. Americans could either turn them over to Afghan or Iraqi authorities, or else just keep them in custody. Their concern is legitimate. But then these prisoners would have to be entitled to all the rights the Geneva Convention outlines for the protection of prisoners of war.

No Violation of the Rule of Law

But terrorism suspects from all over the world still in U.S. custody are not afforded these basic rights. Membership in a terrorist organization, as well as the planning and execution of terrorist attacks, are crimes, even if the suspects are also uniformed soldiers simultaneously fighting for the other side in an armed conflict. These persons should be in front of a court, with all the rights due defendants in that setting.

It is complicated and going to take a long time to issue a final sentence to anyone in a proper court. Can anyone be sentenced there without first having proven his guilt beyond any doubt? Could a guilty party inadvertently escape justice? Yes, this is true. And yes, this is not practical. But these are basic principles, and this is the best the U.S. and all Western-style democracies have. These principles distinguish Western democracies from dictatorships, quasi-democracies, and theocracies.

Taken together, these principles definitely comprise one of our greatest achievements: the rule of law. And one cannot just set aside the rule of law without hesitation, whenever it gets in the way.

It would be all the more dismaying if Obama’s acquiescence is applauded by Europeans. Much to the chagrin of their defenders, there are alternatives to military tribunals. And if anyone fails to consider these alternatives, they can go ahead and support on-the-spot executions.