Tuesday, May 3, 2011
Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.
Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance." According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.
With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw. After the ban,
[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission. Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive. Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.
In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.
This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.
But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts. And with regard to Guantanamo, he once seemed truly committed to closing. Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance." (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.)
But in the end the congressional ban on transfers was a congressional ban. (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.) The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way.