Closing Guantanamo

Yesterday's leak that the incoming Obama Administration is seriously drawing plans to close the prison at Guantanamo Bay, Cuba is very welcome news. But it's not uniformly welcome.

There are, of course, problems here. The AP's reporting suggests Obama is considering a "hybrid process" between the military commissions and the full process enjoyed by U.S. citizens. If there's anything the military commissions process should have taught, it's that reinventing the legal system doesn't work, as evidenced by the bevy of military lawyers who have resigned in protest of the commissions. The concern, stripped of euphemism, is that the evidentiary basis for many trials of Guantanamo detainees -- including, in many cases, torture -- would never be admissible in any court worthy of the name. That's the Bush administration's legacy. But it can't be the basis for cheapening our legal system.

This is a very delicate problem that is not of Obama's making. You have hundreds of detainees, many of them tortured, who would clearly be dismissed in a regular trial because the evidence against them would be inadmissable. And yet even the prisoners who were innocent of any terrorism (and there are many) would hold animus against the United States; I mean, who wouldn't?

Yet Obama is showing the right instincts here. Guantanamo defames out country with every day that it's open. As Anthony Romero of the ACLU says, closing it would be a powerful signal on the change in direction for the country.

Our top issue — closing down Gitmo and shutting down the military commissions — can be done as soon as he lifts his left hand, picks up the new presidential pen and signs an executive order closing Gitmo and ending the military commissions once and for all. Call me naive, but I honestly believe he wants to do it. He promised us that on the campaign trail, and I believe it was more than an empty promise. I believe he knows what he needs to do to restore the America we believe in, to get us on back on track, to give us back our America, an America we never stopped believing in but have sorely missed for the past eight years.

With a stroke of his pen on Day One, a good, courageous president can do that — as long as he listens to himself and to our pleas. As long as he doesn't listen to the centrist and DLC types who tell him, "It's too complicated." "It's tougher than it looks." "Take your time." "We need message discipline — you don't want to do what Clinton did with gays in the military. The nation wasn't ready."

The ACLU took out a full-page ad in the New York Times requesting that Obama close gitmo. And they have a new website, CloseGitmo.com, featuring a video from Brave New Films:



The best thing about what closing Guantanamo would signal is that it would be an action to willingly give up some of the power of the executive. This is highly unusual, as the Congress would typically need to take that power back with the force of law. We are living in a time of an imperial Presidency which grows stronger with every Administration, and we've seen how dangerous that imbalance can be.

The assertion and expansion of presidential power is arguably the defining feature of the Bush years. Come January, the current administration will pass on to its successor a vast infrastructure for electronic surveillance, secret sites for detention and interrogation and a sheaf of legal opinions empowering the executive to do whatever he feels necessary to protect the country. The new administration will also be the beneficiary of Congress’s recent history of complacency, which amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority. For that matter, thanks to the recent economic bailout, Bush’s successor will inherit control over much of the banking industry. “The next president will enter office as the most powerful president who has ever sat in the White House,” Jack Balkin, a constitutional law professor at Yale and an influential legal blogger, told me a few weeks ago.

Whether in a time of war or a time of peace, we need a strong tripartite system that respects civil liberties and restrains the power of each branch. We need lawmakers who have self-interest again. We need a court system that is not a rubber stamp. Closing Guantanamo offers an olive branch from the executive to the other two branches, telling them to fulfill their roles. And hopefully, they'll meet the challenge. Otherwise, we'll continue to rely on the judgment of one man to safeguard the moral authority of a nation. That won't work.