Tom Malinowski from Human Rights Watch writes:
It is an iron law of American government that institutions created to meet a temporary contingency are almost impossible to dismantle once the contingency has passed. If not for the Soviet threat, for example, the United States hardly would have established multiple intelligence agencies, military bases in Germany or a massive nuclear weapons complex. Yet 20 years after the Berlin Wall fell, these elements of the Cold War national security state are still with us.
The institutions cobbled together after the Sept. 11, 2001, attacks may be just as resistant to change, as President Obama is finding in his struggle to close the detention facility at Guantanamo Bay.
In 2008, presidential candidates Obama and John McCain promised to close Guantanamo. (McCain said he would move all the prisoners to Fort Leavenworth, Kan., on his first day in office.) But last year, Robert Gates’s Pentagon fought to preserve the facility’s military commissions. Then, Congress restricted transfers of prisoners to the United States for detention or trial. Last week, White House press secretary Robert Gibbs said that closing Guantanamo would “depend on the Republicans’ willingness to work with the administration,” which, if true, is a nice way of saying “never.”
Now Obama is reportedly weighing an executive order to clarify the rules for detaining some four dozen Guantanamo prisoners whom his administration deems too dangerous to release but who cannot be tried. These men pose a unique problem left over from the Bush administration, when evidence was poorly maintained, some detainees were tortured and others radicalized by their years in prison. If Obama’s order gives them better process, it will be a step forward.
Some, however, are urging Obama to take a more fateful step: to issue an order covering not just the hard cases he inherited in Guantanamo but also allowing detention without trial of any terrorism suspect who may be apprehended in the future, even if far from a battlefield. Such an order could transform the Guantanamo system from an unfortunate, improvised response to Sept. 11 into a permanent feature of our legal landscape.