President Barack Obama's administration has signalled a reversal of the plan, announced early in its term, to close the infamous detention and torture centre at Guantánamo Bay. Instead, revised military commissions will be created; those still in detention number 174 and it is likely that the new bodies will try about 30 of them. This is not the only new move. The executive is preparing parole boards, which will decide if each detainee still poses a threat or if any of them can be transferred to another country. The federal government will provide detainees with legal representation and give them greater access to the evidence than the Bush boards did. Abandoning the plan to close Guantánamo, however, will damage Mr. Obama politically — not least because his hand was forced by a Democrat-majority Congress that, on the closing day, voted to ban the transfer of any of the detainees to the United States. The administration may well feel it has no option but to have military tribunals to tackle the issue.
The new tribunals reveal some of the ugliest tendencies in contemporary American politics. Like their predecessors, they will have lower legal standards than federal courts, for example by accepting information obtained under torture. (Civilian judges may well have dismissed cases because of the prior illegal rendition and torture of the detainees.) Secondly, a government task force has advised keeping 48 detainees indefinitely as enemy combatants; they may never be charged or tried. Thirdly, some of the cases raise problems over the very status of the putative defendants. One such is Abd al-Rahim al-Nashiri, who was tortured and may yet be tried for a part in the attack on the warship USS Cole in Yemen in 2000; but that attack preceded both 9/11 and Congress's approval of the use of force against suspected terrorists. The Obama administration's contention that a state of war existed after 1996 is close to retroactive legislation. In addition, it is doubtful that a civilian jury can go through a case fairly, particularly after the furore caused by Attorney-General Eric Holder's decision to try some of the 9/11 conspirators at a venue near where the World Trade Center used to stand. Although the Supreme Court might quash convictions reached in the commissions, American public opinion is now so hostile to the detainees that both the President and the Congress are being intimidated into overriding fundamental juridical principles. The major problems they will face are that the continued existence of the Guantánamo prison fuels terrorist recruitment and that it subverts the rule of law on which democracy is founded.