OPINION: Obama needs to get real about Guantánamo

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Michael W. Lewis, an associate professor of law at Ohio Northern University School of Law, is a former Navy fighter pilot and co-author of "The War on Terror and the Laws of War: A Military Perspective."Barack Obama's first act as president was to boldly declare that the detention camp at Guantánamo Bay would be closed within a year. He also suspended the military commissions that were in the process of trying some detainees, and he prohibited the use of any interrogation methods not specifically delineated in the Army Field Manual.

 

To implement this break from what so many had declared the misguided and unconstitutional policies of the Bush administration, he signed executive orders creating three task forces. They were to provide recommendations for the disposition of the prisoners at Guantánamo, review the procedures being used by the military commissions, and determine whether the United States could use additional interrogation techniques under any circumstances.


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Last week, the deadline for these task force reports quietly passed. A five-page memo from the disposition task force stressed the importance of trying prisoners in American criminal courts when possible, but did not explain how "possible" is to be defined.

Although even Obama has come around to supporting the idea that some detainees may be held indefinitely without a formal trial, the task force could not bring itself to define who those people might be. The files of each of the 254 detainees were to be reviewed to see if any of them could be approved for release. That process is about halfway complete and the number approved for release remains around 70 - which is where it was when Bush left office. Of those, fewer than 20 have been repatriated since Obama took office - or about three per month, which is lower than the repatriation rate under Bush.

Although Obama has made it clear that some form of military commissions will be necessary, the task force has had little success in developing procedures that are significantly different from those that were being used by the commissions Obama suspended. The Bush administration, Congress and the Supreme Court all weighed in on striking a suitable balance between fairness to the defendant and the protection of classified material.

The end result will certainly lie somewhere in the narrow gap between the procedures used for trying American servicemen and those used by the military commissions when they were suspended.

Considering that even many critics of the military commissions generally regarded the trial of Osama bin Laden's driver Salim Hamdan - which resulted in a conviction, sentence and release for time served - to have been fair, it's hard to imagine why a further six months is required to fashion new procedures. Unless it is simply too politically unpalatable to create commissions that look very similar to those that were suspended six months ago.

But far more troubling than the inactivity on Guantánamo and military commissions is the two-month extension requested by the interrogation task force.

No one can seriously contend that the limits imposed on interrogations by the Army Field Manual represent the absolute limitations on interrogation techniques imposed by international law under all circumstances. At the time that the task force was created, CIA Director Leon Panetta clearly indicated that he expected the approval of some enhanced techniques.

Yet at a time when American casualties in Afghanistan are rising and an American soldier has been captured by the Taliban, our interrogators may not touch or even threaten any al-Qaida or Taliban prisoners in an effort to extract information.

Academics often confront real world difficulties with abstractions that remain grounded in the aspirational rather than the practical. But the presidency of the United States is not an academic position. This administration was elected on the politics of aspiration, but it will only survive if it understands that practical action must follow.

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