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Posted at 12:24 PM ET, 03/ 8/2011

Conservatives claiming "vindication" for Bush on Gitmo are wrong

By Adam Serwer

Yesterday the Obama administration announced it would file new charges in military commissions, indicating that the president's promise to close Gitmo will go unfulfilled for the foreseeable future. 

Conservatives committed to burnishing Bush's legacy were quick to claim vindication, arguing that the decision proved that the detention camp at Gitmo was a good idea all along. But Obama's decision doesn't prove this at all.

The administration also released an executive order outlining its new indefinite detention policy. Not much has changed from when I first wrote about it a few months ago -- the new procedures formally adopt what Karen Greenberg referred to as "the heart of Bush policy" while making the process marginally fairer by allowing individuals detained indefinitely who have lost their habeas cases to be represented by counsel during periodic reviews every six months.

The president and the secretary of defense also reiterated the importance of trying terrorists in federal courts, but they might as well be shouting into the wind. The ban on funds for transfers of Gitmo detainees to federal court won't be going away any time soon, but it's worth remembering that ban actually ensures that fewer terrorists would be brought to justice than would be otherwise. Only six terrorists have ever been convicted in military commissions, compared to hundreds in federal court. 

Failing to close Gitmo remains the most visible symbol of the president's failure to reverse the trajectory of Bush-era national security policy, but the reality, as Glenn Greenwald notes this morning, is that most of the substantive decisions adopting Bush policies were made long ago. The new policies don't amount to a "reversal" on the issue of whether Gitmo should be closed. Republicans are eager to portray Gitmo staying open as a "vindication" of the prison's usefulness, but the fact that the indefinite detention order is limited to detainees currently at Gitmo means that the administration won't be reopening the facility to new detainees, as Bush apologists have suggested doing.

Gitmo isn't open because the administration doesn't want to close it, although its efforts in this area are ripe for criticism. It's still open because Republicans in Congress successfully frightened Democrats in Congress out of giving the administration the necessary funds to close it when they had control of Congress. In the process, they've managed to obscure the original reason detainees were brought to Gitmo -- to keep them away from the scrutiny of the federal courts. Once the Supreme Court held that federal courts had jurisdiction and even habeas rights, the facility was useless for that purpose. Republicans are determined to keep it open not because we can't safely imprison terrorists in the U.S., but because they feel its ongoing presence vindicates Bush in the eyes of history.

It doesn't of course -- Republicans arguing that Gitmo is open because Obama has recognized the wisdom of using the facility is like a bully stealing a kid's lunch money and then telling everyone he merely decided to make a shrewd investment. Gitmo is open only partially because of administration fecklessness; most of the fault lies with the cowardice of congressional Democrats and the cynicism -- and political strength -- of Republicans.

By Adam Serwer  | March 8, 2011; 12:24 PM ET
 
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Comments

I appreciate the nuance on how the policies/approaches are different from Bush's and that Congress is at least partially to blame but......BOOOOOO Obama.

Posted by: ashotinthedark | March 8, 2011 12:32 PM | Report abuse

Adam;

""It's still open because Republicans in Congress successfully frightened Democrats in Congress out of giving the administration the necessary funds to close it when they had control of Congress.""

Uh, yeah, that's it. The Republicans "frightened" a veto-proof Democratic majority out of giving Obama the means to do what he wanted. Like always, it's the Republicans fault after all. Yeah, that's the ticket.

(You are like an SNL parody of the excuse-making partisan.)

""Republicans are determined to keep it open not because we can't safely imprison terrorists in the U.S., but because they feel its ongoing presence vindicates Bush in the eyes of history. ""

And conversely, progs like yourself are of course determined to close it not because we can't justifiably imprison terrorists there, but because you feel its eventual demise vindicates the left's demonization of Bush in the eyes of history.

Wow, this mind-reading and self-servingly attributing motives to one's opposition is both easy and fun!

Posted by: ScottC3 | March 8, 2011 12:57 PM | Report abuse

"but the fact that the indefinite detention order is limited to detainees currently at Gitmo means that the administration won't be reopening the facility to new detainees, as Bush apologists have suggested doing. "

That's the next step. See Leon Panetta's testimony last month:

"Despite President Barack Obama’s vow to close the military-run prison at Guantanamo Bay, the facility would likely be used to detain high-level Al Qaeda leaders like Osama bin Laden and Ayman Al-Zawahiri if they were captured, Central Intelligence Agency director Leon Panetta told a Senate intelligence panel Wednesday.

“We would probably move them quickly into military jurisdiction at Bagram for questioning and then, eventually, move them probably to Guantanamo,” Panetta said, answering a question by Sen. Saxby Chambliss (R-Ga.) during a Senate Intelligence Committee hearing. The Pentagon maintains a high-security military detention facility at Bagram Air Base in Afghanistan."

http://www.politico.com/news/stories/0211/49680.html

Overall though your argument that this is a result of "cowardice of congressional Democrats and the cynicism -- and political strength -- of Republicans" holds more water than the argument the administration is (anonymously and not for attribution) putting forward.

"'The basic message is the National Archives speech remains the framework under which Guantanamo closure is being done.'

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 Guantanamo 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 policies "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." "

http://www.washingtonpost.com/wp-dyn/content/article/2011/03/07/AR2011030704425.html

Posted by: jnc4p | March 8, 2011 1:02 PM | Report abuse

President Obama invites more push back, both at home and abroad, each time he backs down, after he meets some resistance. Why he never stands firm, is hard to fathom.

What are his core convictions that he will not back away from. Certainly not; renewing tax cuts for the rich, closing Gitmo, Health Care Public Option.

Until he stands his ground, on one of his major commitments, he will have no one to blame but himself, if his domestic or foreign foes continue to defy him.

You can not demonstrate strength and resolve to stand firm, while back peddling all the time. Would it have hurt his standing with working class voters, to at least have sent Joe Biden to Madison to show solidarity with the working class?

Medicare and Social Security recipients, be very very afraid.

Posted by: Liam-still | March 8, 2011 1:05 PM | Report abuse

Glenn Greenwald's piece in Salon is worth reading in full:

"None of this is the slightest bit unexpected. The new Executive Order has been previewed for months and merely codifies what has long been Obama's policy: "long" in the sense of "since he's inaugurated" -- not, of course, "when he was a Senator and presidential candidate." I'm writing about this merely to address the excuse from the White House and its loyalists that the fault for this policy, this inability to "close Guantanamo," lies with Congress, which forced the President to abandon his oft-stated campaign pledge. That excuse is pure fiction."

...

"The preservation of the crux of the Bush detention scheme was advocated by Obama long before Congress' ban on transferring detainees to the U.S. It was in May, 2009 -- a mere five months after his inauguration -- that Obama stood up in front of the U.S. Constitution at the National Archives and demanded a new law of "preventive detention" to empower him to imprison people without charges: a plan the New York Times said "would be a departure from the way this country sees itself." It was the same month that the administration announced it intended to continue to deny many detainees trials, instead preserving the military commissions scheme, albeit with modifications. And the first -- and only -- Obama plan for "closing Guantanamo" came in December, 2009, and it entailed nothing more than transferring the camp to a supermax prison in Thompson, Illinois, while preserving its key ingredients, prompting the name "Gitmo North.""

...

"In other words, Obama -- for reasons having nothing to do with Congress -- worked from the start to preserve the crux of the Bush/Cheney detention regime. Even with these new added levels of detention review (all inside the Executive Branch), this new Executive Order is little more than a by-product of that core commitment, and those blaming it on Congress either have little idea what they're talking about or are simply fabricating excuses in order to justify yet another instance where Obama dutifully "bolsters" the Bush War on Terror template. Indefinite detention and military commissions are continuing because Obama worked from the start for that goal -- not because Congress forced him to do so."

http://www.salon.com/news/opinion/glenn_greenwald/2011/03/08/guantanamo/index.html

Posted by: jnc4p | March 8, 2011 1:11 PM | Report abuse

Hate to be OT, but....

The WI town halls are on reprise, only the GOP aren't seeming to enjoy them much...

http://tpmdc.talkingpointsmemo.com/2011/03/deja-vu-all-over-again-wis-gopers-faceloud-town-halls-video.php?ref=fpblg

Posted by: suekzoo1 | March 8, 2011 1:28 PM | Report abuse

@suekzoo1 "Hate to be OT, but....

The WI town halls are on reprise, only the GOP aren't seeming to enjoy them much...

http://tpmdc.talkingpointsmemo.com/2011/03/deja-vu-all-over-again-wis-gopers-faceloud-town-halls-video.php?ref=fpblg"

See what I meant?

Posted by: jnc4p | March 8, 2011 1:36 PM | Report abuse

So Adam's point appears to be that conservatives can't claim vindication for Bush Gitmo policy because Obama still would like to close Gitmo.

Conservatives can only claim vindication for Bush in the respect that Obama has "worked from the start to preserve the crux of the Bush/Cheney detention regime?"

Could this be the worst post we've seen yet from Adam?

Posted by: sbj3 | March 8, 2011 1:52 PM | Report abuse

jncp4-See what I meant?

Yeah, I didn't understand why Sue and someone else (Liam maybe) spent time saying how the two were sooo different then posting a link about yelling at town hall meetings.

Not that I enitrely agree with jncp4 but that was a curious move.

Posted by: ashotinthedark | March 8, 2011 1:54 PM | Report abuse

@sbj3 "So Adam's point appears to be that conservatives can't claim vindication for Bush Gitmo policy because Obama still would like to close Gitmo.

Conservatives can only claim vindication for Bush in the respect that Obama has "worked from the start to preserve the crux of the Bush/Cheney detention regime?"

Could this be the worst post we've seen yet from Adam?"

In fairness, this was a really tough spin job to take on if you were going to be a progressive and still support the Obama administration on this one. He should get graded on a curve.

Posted by: jnc4p | March 8, 2011 2:07 PM | Report abuse

Yeah, I didn't understand why Sue and someone else (Liam maybe) spent time saying how the two were sooo different then posting a link about yelling at town hall meetings.

Not that I enitrely agree with jncp4 but that was a curious move.

Posted by: ashotinthedark | March 8, 2011 1:54 PM

................

I did not post any such link, so I would appreciate if you would check your facts, before suggesting that I did it.

Posted by: Liam-still | March 8, 2011 2:36 PM | Report abuse

Why not just hold regular US trials inside of Gitmo? Get a jury the usual way and fly them over to Gitmo. Use a regular judge and fly her or him over to Gitmo. The hold on funds applies going from Gitmo to the US, not the other way around.

Posted by: LoriWisconsin | March 8, 2011 2:46 PM | Report abuse

Obama should not have dawdled. He should have just moved those detainees into a Domestic Federal Max Facility, and presented the Republicans with a fait accompli. He procrastinates too much, and allows his political foes too much time to keep on attacking his stated goals.

It is the strangest thing how he has allowed the Republicans to make those rag tag detainees into a group that would foment terror attacks, if we housed them in the USA.

Republican Circular Logic: Terrorists attacked us, so we rounded them up, but we better not imprison them here, because that might spur terrorists to attack us.

Memo to Right Wing Idiots. They already attacked us, before we rounded up those people, and they would still try to attack us, even if we never took any of their cohorts prisoner.

Posted by: Liam-still | March 8, 2011 3:03 PM | Report abuse

@LoriWisconsin "Why not just hold regular US trials inside of Gitmo? Get a jury the usual way and fly them over to Gitmo. Use a regular judge and fly her or him over to Gitmo. The hold on funds applies going from Gitmo to the US, not the other way around."

The fundamental goal here is to preserve looser rules of evidence than regular Article III Federal courts provide for while still providing for some semblance of due process. I believe that the Obama administration has reconsidered their options given how close they came to an acquittal in the Ahmed Ghailani case.

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/06/AR2010100606459.html

http://www.washingtonpost.com/wp-dyn/content/article/2011/01/25/AR2011012500612.html

The nightmare PR scenario for the Obama administration is that one of the detainees at Guantanamo is acquitted of all charges against him in a Federal Trial due to an evidence ruling. The detainee won't be released, but the administration will then be attacked from both sides. The conservatives will argue that they botched the trial and the progressives/liberals will argue that continuing to detain someone who has been acquitted of all charges makes a mockery of the justice system.

Posted by: jnc4p | March 8, 2011 3:05 PM | Report abuse

@Liam-still "Obama should not have dawdled. He should have just moved those detainees into a Domestic Federal Max Facility, and presented the Republicans with a fait accompli. He procrastinates too much, and allows his political foes too much time to keep on attacking his stated goals.

It is the strangest thing how he has allowed the Republicans to make those rag tag detainees into a group that would foment terror attacks, if we housed them in the USA.

Republican Circular Logic: Terrorists attacked us, so we rounded them up, but we better not imprison them here, because that might spur terrorists to attack us.

Memo to Right Wing Idiots. They already attacked us, before we rounded up those people, and they would still try to attack us, even if we never took any of their cohorts prisoner."

So your primary argument is with Guantanamo as a symbol, not with "preventive detention" if it's being done in Illinois?

Posted by: jnc4p | March 8, 2011 3:07 PM | Report abuse

My biggest problem with the entire situation is that both the Republicans and Obama keep making those detainees look bigger and more dangerous than they really are.

Terrorists want us to live our lives in a state of irrational fear, and the US has actually helped them along, by making them all seem like super villains, with super powers.


We got attacked on 9/11 by 19 addled homicidal punks, not by a real army, so Bush picks up the megaphone an amplified their terror tactics, and we have not stopped doing so ever since.

The US Government has spend a lot more time stirring up it's people's dread of terrorism, than the terrorists have.

We appear to have lost all sense of proportion, and our leaders have turned us into a nation of bed wetters.

We are far more likely to die in an accident that any of us are to die at the hands of terrorists, but you would never know that the way The Republicans and President Obama keep mal-leading the nation on that subject.

We still have "nothing to fear, but fear itself", so we need to let our leaders know that they better knock off all their irrational fearmongering.

Posted by: Liam-still | March 8, 2011 3:28 PM | Report abuse

Umm, really? That is your explanation? That was one of his main tenets for election in 2008. But he really, really, really, really doesn't want to keep it open. That makes everything okay then.

Posted by: ceebs12345 | March 8, 2011 3:44 PM | Report abuse

Keeping it open on Cuban soil makes us look like we are running an outsourced Gulag. Who the hell do we think we are fooling around the globe, by pretending that because the detention center is offshore, the US government is really not the ones running it, just as much as if we housed them on the mainland.

If we can link them to Terrorists, then we should be able to just detain them for life, right here in America. If we can not link them to terrorists, then we have no right to detain them anywhere.

We locked up Sirhan Sirhan and James Earl Ray for life, for their terrorist attacks, so we should have no problem, and offer no excuses for locking up any terrorists, that have been working with groups that attack us.

We should actually give Gitmo back to Cuba. Why the hell America needs to be in possession of that Cuban land, no longer makes any sense. It reeks of the stench of occupation, and we do not need to be there.

Posted by: Liam-still | March 8, 2011 4:02 PM | Report abuse

90% of Dems = weak willed, cowering, mice, afraid of standing for the principles this country was founded on

100 % of Repubs = jingoistic, crazy, partisan, hacks, happy to endanger American service people's lives to for a modest political gain.

Gitmo= America's enduring shame, site of torture, indefinite detention, and a prime recruiting tool for the bad guys.

Obama = unwilling to alienate the conservadems who fear being called soft on defense and/or terrorism (whatever that means) and their own shadows, Tutor Turtle's evil twin (McConnell), and anything that smacks of controversy.

Posted by: srw3 | March 8, 2011 4:16 PM | Report abuse

"Failing to close Gitmo remains the most visible symbol of the president's failure to reverse the trajectory of Bush-era national security policy, but the reality, as Glenn Greenwald notes this morning, is that most of the substantive decisions adopting Bush policies were made long ago."

Translation:
"He's screwed us over so many times for so long that we don't even feel this one."

Hahahahaha...suckers.

Posted by: dever1052 | March 8, 2011 4:30 PM | Report abuse

while the democrats cowered the republicans held firm thus disallowing the president to bring gitmo detainees here for civilian trials and incarceration; but like we all know, those wonderful republicans can play the "heads i win, tails you lose" game better than anyone, and the democrats fall for it every time.

Posted by: sbvpav | March 8, 2011 4:46 PM | Report abuse

But of course you were not a sucker for having voted for Bush again, even after he engaged in nation building, after he had promised to have a modest foreign policy, and to never engage in nation building.

You just like being a Republican Sucker, don't you, where as we are willing to challenge Obama, when ever we feel he is straying from his campaign promises.

Posted by: Liam-still | March 8, 2011 4:50 PM | Report abuse

Yeah well, there was this event on 9/11 that changed everything, at least for Republicans. What's Obama's excuse? His party even had control of Congress for the first two years of his term. Come on, on this stuff you got played.

Posted by: dever1052 | March 8, 2011 4:59 PM | Report abuse

Thanks for admitting that you just love being a Republican Sucker, Now go back and super glue your lips back on to George W. Bush's Arse.

9/11 did not change everything, you moron. For starters it did not change Bush's mind, about invading Iraq, instead of hunting down Bin Laden.

Posted by: Liam-still | March 8, 2011 5:14 PM | Report abuse

Riiiiight. 9/12/2001 was just another day, eh? You know you really shouldn't inhale that community-based reality around here.

Posted by: dever1052 | March 8, 2011 5:22 PM | Report abuse

Idiot. It did not change every thing, which is what you right wing nut jobs love to parrot.

Bush did not even bother to track down Bin Laden or concentrate on making sure The Taliban did not return to Afghanistan.

Sucker!!!!!!!!!!

Posted by: Liam-still | March 8, 2011 5:33 PM | Report abuse

Ha!

Posted by: restons | March 8, 2011 5:41 PM | Report abuse

Gitmo to me is just another huge pile of poop that Bush/Cheney left behind. Few of us believed it would magically go away in two years.

It doesn't vindicate Bush, it convicts Bush. God forbid we ever forget his war crimes.

Posted by: Beeliever | March 8, 2011 7:07 PM | Report abuse

What bothers me about these kind of articles is that you have staked out a position and try to shoehorn the events to validate your position. Why not just accept that it validates Bush's policies and move on to something else, instead of fighting to the death? It make you look foolish and just a little immature.

Posted by: rs824407 | March 9, 2011 7:39 AM | Report abuse

Well, at least Obama can take credit for:

1) Forbidding the practice of rendition (oh wait, no... he has continued that practice)

2) Halting military commissions (oh wait, no... he has affirmed them)

3) Stopping the PATRIOT Act (oh wait, no... he has asked for it to be extended)

Posted by: ArlingtonVirginia | March 9, 2011 10:27 AM | Report abuse

Do you suppose that Adam will go back to reporting after Obama has failed to get re-elected?

Just one more piece twisting the facts from one more journ-o-list.

Hey Washington Post here's a news flash. You don't have to pay Greg and crew for this, you can get it for free at Huffington/AOL.

Posted by: manapp99 | March 9, 2011 11:18 AM | Report abuse

And, see, President Obama really, truly, in his heart of hearts, doesn't want to order drone attacks on civilians, either, it's just those darned Republicans making him do it. They make him do every bad thing he does. But don't you dare suggest this makes him weak!

Posted by: stonedone | March 9, 2011 11:46 AM | Report abuse

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