Infuriating Progress

Yesterday, the Obama Administration announced that it will no longer designate the detainees at Guantanamo Bay as illegal enemy combatants.

Those three words are, as I have noted a number of times before, the very heart of the Bush Administration's legal framework behind the detention of prisoners from the "War on Terror" in relative secrecy and without trial. The Obama Administration's decision to redefine the Guantanamo prisoners' legal status is therefore an acknowledgment of the problems inherent to that particular classification, and is something of a reassurance after last month's decision to maintain the use of the legal category for the detainees at Bagram Air Force Base in Afghanistan. Presumably, at least some of the Guantanamo prisoners will now receive the full rights entitled to them under the traditional justice system of the United States – something that terrified the Bush Administration for completely inexplicable reasons.

And indeed, Reuters quotes Attorney General Holder as saying some things you'd never have heard from a Bush Administration official:

"As we work toward developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law."

Aside from the references to values and the rule of law (read: "not torturing people"), it's encouraging that Holder refers to the developing nature of the Administration's work on these issues, as it means that some of the poor decisions thus far may merely be temporary measures.

Nevertheless, the real question here does not concern Guantanamo Bay at all. That prison's fate is clearly sealed. The real question is about the United States detention facilities on foreign soil, where most current and future prisoners will be held and interrogated in the upcoming years. After all, Section 8(a) of Obama's executive order to close Guantanamo quite explicitly states that "Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order." In other words: any reassessment of the Guantanamo Bay prisoners does not apply to the prisoners at the massively expanded Bagram facility in Afghanistan or any of the other US military prisons overseas. For now, we must assume that last month's reaffirmation of their illegal combatant status stands.

Even the ultimate treatment of the Guantanamo prisoners remains something of an open question, as the rumblings of many a human rights lawyer and activist can attest. With this new announcement, we almost have less of an answer than ever to the question of how future prisoners will be treated. And that is the very point I would like to stress: while just about any work to negate the illegal enemy combatant jurisprudence is good news in my book, I can't help but feel that the Administration's focus on Guantanamo is just a distraction, an effort to correct the most technically illegal portions of Bush approach to justice while maintaining their fundamental framework.

But my god, I hope I'm wrong. The stakes could hardly be higher on this.