Innocence Lost

Barack Obama would probably never have ordered his security services to tie a prisoner to the infamous water board and pour water into his airway to simulate drowning. Even following the terrorist attacks of 9/11, the United States would presumably never have tortured prisoners, created Guantanamo and a host of secret CIA hoosegows, nor instituted military tribunals that use legally questionable procedures. One may reasonably expect the current president to have that much civility and respect for human rights and the rule of law. But it’s another question whether Obama can handle it all without compromising his own moral beliefs.

Even in a best-case scenario, George W. Bush’s legacy – especially regarding policies of prisoner treatment – remains a legal and political minefield for the new president. Obama may reject the excesses of Bush’s anti-terror policies, but he can’t un-ring a bell.

Obama wants to close the Guantanamo prison camp, but what is there to do with the inmates? He wants to observe the principles of constitutional government, but are fair trials even possible after years of torture and despotism? Such questions are likely to ensnare Obama as he seeks to undo George Bush’s tangled knots.

Political considerations in dealing with the disgraceful history of torture have already resulted in a strangely twisted path. In one of his first edicts, Obama did away with torture and made horrifying important documents public, but stopped short of indicting the torturers. This is an untenable position according to both American and international law. Torture is forbidden and whoever resorts to it must be brought to justice. But Obama doesn’t want to be the one to drag the CIA lackeys or their bosses into court. Moral ambivalence is the price Obama is paying because of political considerations.

The same is happening now regarding the military tribunals. Obama suspended trials before these Bush-created special courts last January. He has historically criticized them and as a senator personally voted against their creation.

Nevertheless, he will allow the tribunals to continue because the White House isn’t willing to take the political risk of having Guantanamo prisoners air their complaints of torture and arbitrary detention in a public courtroom as they most certainly would. One can well imagine the reaction of the American public should a top terrorist leave the courtroom a free man because of legal technicalities.

The U.S. government hasn’t yet shown us its plans, and not every military tribunal is necessarily injurious to the rule of law. But even if the rules are changed to give the accused more rights, the logic behind a new version of the tribunal concept is nonetheless questionable: precisely because he has always opposed tribunals, Obama will be immediately accused of trying to do away with rule of law principles himself. The only argument in favor of tribunals, after all, is that it’s easier for the state to gain convictions that way.

The clean solution – normal indictments when proof exists, release when it doesn’t – doesn’t appear to have much chance in Washington under Obama. One can even sympathize with the new president’s dilemma. As with so much else, the bottom line is: Obama didn’t create the mess he’s now expected to clean up to everyone’s satisfaction.

But Obama will pay a price. The compromises he must make will injure his credibility and closing Guantanamo is supposed to be a powerful signal that the United States is again returning to basic Western rights and liberties. Many of Obama’s critics will rightly decry the inconsistency of his policies. The president of great hopes is now caught up in the world of practical politics.