Risking the wrath of his liberal base, Barack Obama yesterday unveiled plans that will revive the Bush administration's military commissions to try terror suspects being held at Guantanamo Bay.
Although his plan will modify the tribunals in an effort to expand the legal rights of the defendants, the decision has already proved controversial. One of Mr Obama's first acts as President was to announce the closing of Guantanamo Bay within a year and the suspending of the tribunals which drew criticism around the world. As a candidate, he favoured turning to America's federal courts or the traditional military judicial system to try the cases.
But pressure has been building on Mr Obama to explain what he planned to do with the roughly 241 detainees at Guantanamo – and particularly how he would proceed with the 20-odd cases due to be handled under the commission system set up by an act of Congress in 2006. He remains squeezed by competing priorities: to repudiate the past Bush policies while not compromising national security.
His statement yesterday reflected that balance: "This is the best way to protect our country, while upholding our deeply held values," he said. And while acknowledging that he had "objected strongly" to the Bush approach, he insisted that military tribunals "are appropriate for trying enemies who violate the laws of war".
There was support for the shift from a key moderate Republican, Senator Lindsey Graham. "I continue to believe it is in our own national security interests to separate ourselves from the past problems of Guantanamo," he said, while adding: "I agree with the President and our military commanders that now is the time to start over and strengthen our detention policies. I applaud the President's actions today." But liberals will point unhappily to an emerging pattern of Mr Obama retreating from his initial instinct to throw Bush anti-terror policies overboard.
He performed a similarly perilous policy pirouette earlier this week when he sought to block attempts to release a new batch of photographs of prisoner abuse by members of the US military, saying that to do so would endanger US soldiers serving abroad. Previously, the White House had indicated that it would not intervene after a court ordered the release of the photographs.
It will hardly help him, however, that at least one of the photographs in question has now leaked. The SBS television channel in Australia revealed that in the wake of the Abu Ghraib prison abuse scandal two years ago, it had acquired other photographs that have not yet been widely seen.
The Obama White House is increasingly finding itself and its allies embroi led in controversies to do with the treatment of prisoners from George Bush's War on Terror. On Thursday, Nancy Pelosi, the Democratic Speaker of the House, took steps to defend herself against allegations that she knew for years that the US was waterboarding detainees, saying the CIA had lied to her about it.
But with his shifts on both the photographs and the tribunals, Mr Obama may be bolstering his support among moderates. He will be aware that support among the liberal left, on the other hand will be corroded. The attacks from human rights activists last night were instant.
"Everyone knows the military commissions have been a dismal failure," said Gabor Rona, a legal director for Human Rights First. "The results of the cases will be suspect around the world. It is a tragic mistake to continue them."
Under the new arrangements, the White House will ask for another 120-day delay before the tribunals are resumed to give lawyers time to implement the modifications that have been proposed by President Obama. Officials in Washington insisted last night that Mr Obama had not reversed his stance. They noted that as President, he has never explicitly ruled out continuing with the military commissions. Indeed, in 2006, Mr Obama voted against the act that instituted the commissions as they now stand, but he did, however, support an alternative bill that would have instituted a different version of the commissions. That bill had itself been tabled by a group of Republican moderates.
The President is asking for changes that would give detainees greater leeway in choosing their own defence team, protect them from court prejudice if they refuse to testify, restrict the use of hearsay in the cases against them and would ban the introduction of all evidence gleaned through cruel or inhuman treatment.
Those new safeguards are not going to quell the indignation of those who consider the commissions in any form to be a perversion of US justice. Critics will point to Mr Obama's repeated assertions that America would abandon its moral code when pursuing terror suspects at its own peril.
"It's disappointing that Obama is seeking to revive rather than end this failed experiment," said Jonathan Hafetz, a lawyer at the American Civil Liberties Union. "There's no detainee at Guantanamo who cannot be tried and shouldn't be tried in the regular federal courts system."
Obama vs Bush: How tribunals compare
*A ban on all evidence gleaned through cruel or inhumane means, including waterboarding
*More leeway for detainees to select their defence, although still restricted to military lawyers
*No prejudice against defendants if they choose not to testify
*Guantanamo to remain trial venue
*Military lawyers will still provide defence services for the detainees
*Accused will still not have access to all evidence used against them
*Detainees will still not have access to the two traditional branches of US law, the civilian court system and the Uniform Code of Military Justice
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