Reversal to Resolution: Finally We Know Where We're Going on Guantanamo

I’ve thought, talked and written a lot about Guantanamo Bay and the detention center there. After all, it’s been nearly ten years since the prison camp opened.

On my legal television program for Court TV, we had regular segments on Gitmo, in an effort to keep the public informed. I anchored special reports, including live coverage of the first military commission, the case of Salim Hamdan, Osama Bin Laden’s driver.

The Gitmo dilemma has capturet my legal imagination and I blogged as the predicament passed from one president to another -- for AC360, on my own Best Defense Blog and here on It’s A Free Country; most recently I pondered the case of Ahmed Ghailani, who was convicted last year in civilian court for his role in the bombings of the U.S. embassies in Kenya and Tanzania, and what it might mean for military tribunals.

Down at Gitmo, it seemed, the more things changed, the more they stayed the same - even with a whole new administration in office. But today, it finally seems we have some resolution.

Reversal, yes. But resolution, too.

The Obama Administration has decided, once and for all, to proceed with military commissions at for war-crimes against the five detainees in the 9/11 case.

This decision comes, after a year or so of indecision about whether to try the men in federal civilian court (as was done with Ghailani, and, before him, Zakarias Moussaoui, in federal court in Washington, DC.)

If you think you may be feeling a little whiplash, it’s not your imagination. This is an about-face. The administration had said it would try these detainees in civilian court. That was the right thing to do, as a matter of law. But then something else got in the way: Politics.

The administration’s shift back to military commissions is a reaction to the significant political blowback it got when it suggested bringing detainees to the U.S. (especially New York) for trial.

Critics (see today’s New York Times, for example) are calling this an admission of defeat by the Obama administration. And it is true President Obama and his Attorney General, Eric Holder have been frustrated by Congress in their efforts to close the detention center at Guantanamo Bay, which was opened by President Bush, in the post-9/11 climate of January 2002.

President Obama differentiated himself from his predecessor with the announcement on his very first day in office that he would close Gitmo within one year - a goal I wrote then was noble, but next to impossible to fulfill.

The Guantanamo dilemma is one of the stickiest ever presented to an American president. There are currently 271 detainees at the camp, which itself has become a political football and a constitutional quagmire.

While the facts and evidence of the 9/11 cases - not to mention the constitutional jurisprudence - may suggest a civilian trial is in order, nearly ten years have passed since the horrible events in question; and new restrictions, imposed by Congress last year (that ban the military from using its funds to transfer detainees to US soil for trials), leave the Justice Department no choice but to move forward with military commissions.

If you think the Ghailani helped matters, it didn't. Security went smoothly. But the jury acquitted Ghailani on 280 charges and convicted on only one count of “knowing and willing participation” in the bomb attacks against the US embassies. Critics point to the result as a sign that civilian trials just won’t work.

In my view, that is a simplistic and incorrect conclusion. The judge sentenced Ghailani to life in prison with no possibility of parole. Moussaoui is serving the same sentence for his role in conspiring to kill US citizens on 9/11. Both men received fair trials in the federal court system, restoring the fundamental American value of justice for all, in the process.

Given the unique circumstances of Guantanamo Bay, however, the Obama administration should move forward with military tribunals for Khalid Sheikh Mohammed, and the other detainees. We cannot let the process languish any longer. Justice cannot be deferred another day -– not for the detainees, not for the American people, and most of all, not for the victims of 9/11.