Friday 20 Jul 2018 | 22:45 | SYDNEY
Friday 20 Jul 2018 | 22:45 | SYDNEY

Hope dashed on the rocks of Guantanamo Bay

13 April 2011 12:31

Bronwyn Lo is a lawyer and an intern with the Lowy Institute's Global Issues Program.

At the start of April, the US Attorney-General Eric Holder announced that Khalid Sheikh Mohammed, along with four other 9/11 suspects, will be tried by a military commission at Guantanamo Bay in Cuba. 

This represented a policy reversal for the Obama Administration, which had in November 2009 asserted its intention to try the suspects before a US federal court.

As Holder made clear, it was a decision taken reluctantly and for practical reasons, against the backdrop of congressional intransigence.

As the tenth anniversary of 9/11 approaches Congress's refusal to fund the transfer of Guantanamo detainees to the US forced Obama's hand.

But it is a decision that highlights, at the commencement of his re-election campaign, the widening gap between Obama's ambitious rhetoric and cold political reality.

Obama has attempted to avoid the divisiveness that Bush mined as president. While Bush portrayed 9/11 as an all-exculpatory legal game-changer, Obama has sought to introduce a more nuanced approach to the 'war on terror' — not least by rejecting that catchphrase early in his presidency.

In May 2009, Obama emphasised that the attacks should not undermine America's commitment to the rule of law under its Constitution.

Consistent with this, to the extent possible, suspected terrorists would be tried in domestic federal courts rather than in offshore military commissions largely beyond the reach of US law and the Constitution.

The Obama Administration's decision to try its most high-profile 9/11 detainee before a military commission, despite its views on the suitability of the case for a federal court, tarnishes its credibility with Bush's Guantanamo excesses.

This black mark is not entirely warranted — in 2009, Obama amended the existing legislation governing military commissions, introducing new procedural safeguards and rules that mean greater protection for defendants' rights.

Yet the commissions still do not meet the fair trial requirements of federal courts and remain prosecution-friendly. (The Congressional Research Service provides a useful comparison of military commission and federal court trials.)

In law, as in politics, perception is as important as substance — the perception and actuality of impartiality, independence and due process. Unfortunately for Obama, 'Guantanamo Bay' evokes connotations of unlawful excess that are only partially repudiated by the present, improved law applying to military commissions.

This means that attention on the upcoming military trials will be focused as much on questions about the legitimacy of the trial as on the crimes being prosecuted — especially as the amended legislative framework has yet to be tested in the Supreme Court.

Despite Holder's professed confidence the military trials will be 'fair' and 'just', they are likely to be neither, tainted by the illegitimacies of present and past. For someone whose presidency was founded on changing perceptions, it is a disappointing development.

 Photo by Flickr user Leonieke Aalders.