Tuesday, April 05, 2011

Gitmo Is All About Politics

Kristen Breitweiser was one of the infamous Jersey Girls that pressured Congress to form the 9/11 Commission. Breitweiser writes about how President Obama invited 9/11 families to the White House and promised to close Guantanamo Bay.

For the past two years, it's been President Obama in the Oval Office. Quite early on in his presidency, Obama invited the 9/11 families to the White House to discuss 9/11-related issues. During this meeting in Feb '09 the topic of closing Guantanamo and the use of Article 3 courts to prosecute the remaining alleged 9/11 conspirators was discussed. Many of us were incredibly relieved to learn that as a matter of course President Obama was going to shut down Guantanamo and support the open prosecution of the alleged 9/11 conspirators. He gave us -- the varies widows and children at the meeting -- his golden word. He shook our hands. He smiled broadly. He posed for pictures. (In fact, several weeks later many of the widows received hand signed courtesy copies of these photos from Obama -- a nice touch. I did not receive such a photo.)

Obama's "golden word" isn't worth much. The Justice Department announced that Khalid Sheikh Mohammed will be tried in a military tribunal at Guantanamo. In Obama's defense, Congress refused to fund the transfer of detainees to the United States. Slate columnist Dahlia Lithwick knocks the blame Republican defense aside.

Say what you will about how Congress forced Obama's hand today by making it all but impossible to try the 9/11 conspirators in regular Article III courts. The only lesson learned is that Obama's hand can be forced. That there is no principle he can't be bullied into abandoning. In the future, when seeking to pass laws that treat different people differently for purely political reasons, Congress needs only fear-monger and fabricate to get the president to cave. Nobody claims that this was a legal decision. It was a political triumph or loss, depending on your viewpoint. The rule of law is an afterthought, either way.

Obama's and the Republican Party's legal stance makes sense when viewed through the prism of politics. Republicans could play to the base by keeping detainees at Gitmo. Obama needed the base in 2008 and had to campaign against Bush's unpopular detainee torture and secret prison policies. Once Obama got elected he could forget about the detainees issue after Republicans shot it down in Congress. Obama wasn't about to spend political capital defending the rights of the very guilty Khalid Sheik Mohammed. Republicans were spared from having to defend torture. Everyone wins. Except the rule of law.

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