President Obama has once again pledged to close the Guantanamo Bay prison. But can he back up his brave words with decisive action? Yes, if he chooses to.
Legislation bars him from sending Guantanamo detainees to the mainland United States to receive justice from the federal courts, leaving them to be tried by slow-moving military commissions that deny them many of the guarantees of civilian legal procedure. Nevertheless, the president can send federal judges to Guantanamo, where they could resolve the remaining cases in trials everyone can respect. The clearest precedent was set in postwar Germany.
Exercising his authority as commander in chief, President Harry S. Truman created a system of civilian courts in the American zone of occupation. In the 1950s, Dwight D. Eisenhower used the same power to create a special United States Court for Berlin, which remained under occupation even after the Federal Republic regained full sovereignty in western Germany. A regular federal judge presided over a criminal trial in that court as late as 1979.
Nothing prevents President Obama from establishing a similar court at Guantanamo, where 166 prisoners remain under indefinite detention and about 100 have gone on a hunger strike. The president should quickly direct a team of district judges to try the detainee cases in Guantanamo under civilian criminal procedures. Such an order should also create a panel of federal judges to hear appeals.
Decisive intervention is particularly important now, since the work of the military commissions has been interrupted by revelations that Defense Department computers gained access to e-mail messages among the defense lawyers, and potentially with their clients. These discoveries came after reports that microphones in the courtroom and a hidden microphone in a defense lawyers’ meeting room permitted eavesdropping on confidential conversations.
Another hidden hand became visible in another episode. Since some testimony involves secrets, there was a plausible basis for allowing the military judge, Col. James L. Pohl of the Army, to control the audio stream available to journalists and spectators viewing the proceedings. But he wasn’t the only one making these decisions. An unseen censor who the government said was working for the “original classification authority” — presumably the CIA — was also in control of a cutoff switch behind the scenes.
Since President George W. Bush revived military commissions in 2001, half a dozen prosecutors have resigned in protest and Congress has twice passed legislation in efforts to create a system that might win public confidence. Now the escalating hunger strike has led to forced feedings and physical confrontations, in which guards have used nonlethal bullets to quell unrest. Suicide attempts would further intensify the cycle of resistance and repression.
Though holding the trials would address a shameful failure of the American government to deliver due process speedily, it would not solve all of the problems evident at Guantanamo. The government must also resolve the cases of prisoners who are not under charges but are deemed too dangerous to release, or for whom no country willing to accept them can be found.
But by joining to bring federal judges to Guantanamo, the president and the chief justice would do more than vindicate the rule of law. They would set an example for collaboration, between the branches of government, and a commitment to seeing justice done, that might encourage Congress to look at the other obstacles to closing the prison. Then, perhaps, Congress and Mr. Obama would finally take whatever other steps are needed to bring a decade of blunders to an end.
Bruce Ackerman, the author of “Before the Next Attack,” and Eugene R. Fidell, founding president of the National Institute of Military Justice, teach at Yale Law School. They wrote this for The New York Times.