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Obama’s new Gitmo policy is a lot like Bush’s old policy

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By Dana Milbank
Washington Post Staff Writer
Tuesday, March 8, 2011; A02
Washingtonpost.com

It was another important moment in the education of Barack Obama.

He began his presidency with a pledge to close the military prison at Guantánamo Bay within a year. Within months, he realized that was impossible. And now he has essentially formalized George W. Bush’s detention policy.

With Monday’s announcement that the Obama administration will resume military tribunals at Gitmo, conservatives rushed out triumphant I-told-you-sos. Liberal supporters were again feeling betrayed. Administration officials had some ‘splainin’ to do.

And so they assembled some top-notch lawyers from across the executive branch and held a conference call Monday afternoon with reporters. The ground rules required that the officials not be identified, which is appropriate given their Orwellian assignment. They were to argue that Obama’s new detention policy is perfectly consistent with his old  detention policy.

Not only had he revoked his pledge to close Gitmo within a year, but he also had contradicted his claim that the policy “can’t be based simply on what I or the executive branch decide alone.” His executive order did exactly what he said must not be done, in a style pioneered by Obama’s immediate predecessor in the Oval Office.

“This detention without trial – what’s different from the Bush administration?” a French reporter from Le Monde asked during the call.

Good question. The answer, from the Anonymous Lawyers, was technical. “We have a much more thorough process here of representation. . . . There’s an opportunity for an oral presentation to the board.”

CBS’s Jan Crawford was not impressed by this answer. “What specifically is different in this than what we were living under that was so bad in the Bush administration?” she asked.

The Anonymous Lawyers replied that cases would be reviewed every six months instead of every year. They also spoke about their “intent to comply with Article 75 of Additional Protocol One.”

This still wasn’t working for Yochi Dreazen of the National Journal. “It seems like what is happening now with this executive order is effectively ratifying the status quo,” he said. “Is that a fair read?”

The Anonymous Lawyers did not think that was a fair read. Over and over again, they repeated their theme: “The basic message is the National Archives speech remains the framework under which Guantánamo closure is being done.”

Oh? Let’s review.

The Anonymous Lawyers were referring to Obama’s speech at the National Archives in May 2009.

There, he said: “Rather than keeping us safer, the prison at Guantánamo has weakened American national security. It is a rallying cry for our enemies. . . . By any measure, the costs of keeping it open far exceed the complications involved in closing it. That’s why I argued that it should be closed throughout my campaign, and that is why I ordered it closed within one year.”

It was then, too, that Obama said detention policy “can’t be based simply on what I or the executive branch decide alone. . . . In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime.”

In a sense, Monday’s announcement was a formal acknowledgment that Obama had set expectations unrealistically high during his campaign and early in his term.
“The president has now institutionalized a process that a lot of his political base imagined he was going to get rid of,” said my former Post colleague Benjamin Wittes, now a Brookings Institution authority on detention policy.

Less easy to fathom is Obama’s unwillingness to involve Congress in creating his new detention regime, as he had promised. As he himself argued, the procedures won’t have legitimacy without “judicial and congressional oversight.”

The Wall Street Journal’s Evan Perez asked the Anonymous Lawyers about this during the conference call. He pointed out that Obama, in his Archives speech, “hinted at” a court review for indefinite detentions.

“I’m not quite sure what . . . you think the president hinted at,” one of the Anonymous ones answered.

And how about working with Congress? An Anonymous Lawyer said this is a “discretionary executive act” that is “well within the authority . . . of the president.”

Funny, that’s just what the Bush lawyers used to say.