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The Shutdown That Wasn't

Use with caution
Use with caution
Earlier this week the Obama administration announced plans to move ahead with the prosecution of Khalid Sheikh Mohammed, the alleged 9/11 mastermind now imprisoned in Guantanamo Bay.

Attorney General Eric Holder, Obama's prosecutor-in-chief, said that the Department of Justice would be handing the cases of Mohammed and four of his co-conspirators over to the Pentagon so that the men can face trial before military commissions. Holder did not sound like a happy man. He noted, with an almost audible gnashing of teeth, that Congress had blocked efforts to bring Gitmo detainees to the United States for trial in federal courts. He made a point of accusing unnamed Congressional meddlers of interfering with the prerogatives of the executive branch. Legislators, he declared rather contemptuously, don't have the same "access to the evidence and other information necessary to make prosecution judgments" as the White House. "But we must face a simple truth: those [congressionally imposed] restrictions are unlikely to be repealed in the immediate future," he went on. "And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice."

It's no wonder that the Obama administration should react so defensively to the issue of trying Mohammed in Guantanamo. One of the first things Obama did upon taking office was to declare, with a grand flourish, his intention to shut the Guantanamo prison down. That earned him enthusiastic applause from many of the critics of Bush-era detention policies. In the years after 9/11 the word "Guantanamo" came to stand for some of the less savory aspects of America's war on terror. Some of the detainees were subjected to abuse and deplorable living conditions. Secrecy obscured the prison's workings. There were plenty of serious concerns about whether the suspects held there could expect fair trials and, indeed, whether many of them belonged there in the first place. (Some of the critics even came from within the Bush administration itself.) So closing the prison at Guantanamo seemed like a good way to make a fresh start.

It soon turned out that this was much easier said than done. The reasons for this had little to do with morality or legal arguments. Gitmo could only be closed if you had somewhere else to put the prisoners who remained there, and it quickly became clear that no one wanted to have them. When Holder tried to put Mohammed on trial in New York City, he was shot down by a bipartisan resistance front. Efforts to move detainees to other locations in the United States met with comparable stonewalling. And the same principle applied abroad. The White House begged government after government to take some of the detainees off its hands, but all demurred. So what was to be done?

Benjamin Wittes, a legal expert at the Brookings Institution in Washington, has a recommendation of his own. He says that President Obama can make a new start on Guantanamo by embracing it. His reasoning is simple: "Guantanamo today is not the same facility that Barack Obama was complaining about. I think he could take ownership of it very honestly and without really admitting too much error on his own part."

Why? Today's Guantanamo, says Witte, is not the same place as the one that stirred critics' ire in the years immediately following 9/11. Perhaps most famously, the International Committee of the Red Cross described conditions in Guantanamo as "tantamount to torture" in a 2004 memo.

Yet a lot has changed since those shameful days. The U.S. Supreme Court has issued several decisions strengthening detainee rights. The Bush administration made some important modifications to the Guantanamo legal regime in its later years, and the current White House has issued orders that substantially improve the status review process for prisoners. Today federal courts oversee habeas corpus at the detention facility. All the inmates have lawyers. Journalists visit regularly. "Today," says Wittes, "Guantanamo represents all the things that Barack Obama once complained that we needed to close Guantanamo in order to do."

Wittes is well aware that this might not satisfy those on both ends of the political spectrum who hold strong beliefs about the prison. Liberals, he notes, still see Guantanamo as a "legal black hole," a place that exemplifies everything they hated about Bush-era infringements of civil liberties. Conservatives, meanwhile, think of Guantanamo as a useful tool for handing out tough treatment to bad guys. Neither view, Wittes says, probably captures the current Gitmo reality.

Part of that reality is that shutting the place down looks more improbable with each passing day. And if you can't shut it down, what's the point of complaining about your own impotence? Wittes suggests that it make more sense to draw attention to the positive changes that have already been made at Guantanamo -- something you can't do when you spend all of your time talking about the need to get rid of it. (And perhaps, while you're at it, maybe you could also open up Gitmo to terrorist suspects from some of the overseas U.S. prisons where conditions still aren't subject to the same degree of transparency.) No one ever said that the fight against Al-Qaeda and its allies would be easy.

-- Christian Caryl