Additionally, proceedings were halted because a courtroom feed to the media and observers that supposedly only the judge was able to control was cut off by an unnamed U.S. agency. Then in mid-April, hearings were further delayed by two months because an enormous number of prosecution and defense files disappeared from the server that both legal teams are required to use to process the highly classified documents in the case.
Furthermore, it’s not entirely clear why even the court’s supporters would be so in favor of continuing the status quo — the only two military commission verdicts obtained by full trials were recently overturned on appeal. In those cases, the appellate court found that the charges of conspiracy and material support for terrorism, for which the defendants were accused, were not war crimes and hence not within the jurisdiction of the commissions.
Current congressional restrictions prohibit the use of funds to transfer detainees to the United States, so Obama is correct when he said that he’ll need to re-engage with Congress to lift these unreasonable restrictions. While federal courts are not perfect, they provide much greater procedural protections than the military commissions; and, with 200 years of jurisprudence behind them, their verdicts are far more certain to withstand appeal.
Obama’s pledge to “get back at it” on closing Guantánamo is welcome, but he can’t get away with words alone, or with shifting the blame to Congress. There are steps he can take now to begin ending the unlawful practice of indefinite detention without trial and to transfer those prisoners who are already slated to be sent home. As the president himself said, Guantánamo “hurts us in terms of our international standing” and “lessens cooperation with our allies on counterterrorism efforts.” If these are words he truly believes, then he should exercise the authority he has to transfer some detainees now, and begin working with Congress to address the rest.
Laura Pitter is counterterrorism adviser at Human Rights Watch.