President-elect Obama: It Doesn’t Gitmo Urgent Than This

Gabor Rona – Human Rights First’s International Legal Director – will be in Cuba to monitor the proceedings and report back on events as they unfold. January 16, 2009: Next week, for the umpteenth time, a representative of Human Rights First (me) will embark on a trip that should not occur, to a destination that should not exist, to witness events that should not happen. But this time is different. All eyes at the military commissions in Guantánamo next week will not be on the accused, the lawyers, the judges, or the jailers. They will instead be focused on a podium in Washington, D.C., where, shortly after 10:00 a.m on January 20, President-elect Barack Obama either will, or will not, say the magic words: “Today, and as my first official act as President of the United States, I announce the immediate suspension of military commission trials at the U.S. detention facility in Guantánamo.” Of all the abuses of law, reason and morality by his predecessor, why should Obama take this one on first? The reasons are both practical and symbolic. Obama can announce an end to torture and extraordinary rendition to countries where detainees are abused, but it will take time to unravel all the legal and institutional packaging by which the Bush Administration attempted to both deny and justify those policies. He can express his intention to investigate the abuses of the Bush Administration, and even, although it seems increasingly unlikely, to prosecute those who planned and ordered detainee torture and abuse, but the question of how is fraught. He can declare his intention to close the detention facility at Guantánamo, but it will take time to figure out what to do with the detainees – some suspected of serious terrorism offenses, some innocent of terrorist activity but tainted by famously irresponsible rhetoric of Bush Administration officials who branded them all as “the worst of the worst.” But there’s one thing he can accomplish with little more than the time and strength it takes to say it. Of all the illegal, counterproductive and just plain irrational architecture that the Bush Administration has designed to combat terrorism, nothing is easier to bring to a screeching halt, and there is no better way to signal a break with the past than to suspend the Guantánamo military commissions. The costs of even a brief delay are great. Within days after President-elect Obama takes office, the military commissions are slated to begin trying a child soldier for the first time in modern American history, contrary to the tenets of international law and common decency. Whether or not Omar Khadr is found guilty, the stain on the Obama Administration and on the American judicial system will be indelible. To put it in strictly legal terms, the harm in being tried by a flawed tribunal is not merely the risk of being found guilty. It is also in being subjected to an illegal process in the first place. This is not just one human rights advocate’s opinion. It is a fact of logic and law that has been articulated numerous times by the U.S. Supreme Court, including by one of its most outspokenly conservative members, Justice Antonin Scalia. Since it is so easily accomplished, President-elect Obama’s inaugural announcement to suspend military commissions would be powerful evidence that he meant what he said in his application for the job that the majority of voters hired him to accomplish – to bring change to America. The message would be clear not only to all Americans, but the entire world, that he will act decisively to fulfill his stated commitment to end these illegal proceedings, to transfer the cases that should be prosecuted to the federal criminal justice system where they belong, and to begin the long march of returning his country to the rule of American and international law.

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Published on January 16, 2009

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