Guantánamo and the Permanent Bureaucracy

Key Bush advisers on Guantánamo have kept their positions, the AP reports. Among those “still overseeing how the Pentagon deals with terror captives” is a “senior judge who has not followed President Barack Obama’s order to halt military trials at Guantanamo Bay.”

A new president and a new stated policy do not mean the personnel has changed. “Two other senior Pentagon officials have been shunted into civil service jobs. As a result, they cannot be summarily fired because of the change in presidential administrations.” If Obama really wants to effect change here, he will have to make it a priority and force the issue, as I discuss in my recent op-ed, “Obama’s Guantánamo Opportunity.”

However, I have my doubts the issue is a top priority for the new administration, which is busy trying to fleece the taxpayers of another trillion dollars of their hard-earned wealth. If the administration was instead focused on restoring some of our constitutional safeguards weakened under Bush, it could surely find a legal way to circumvent judicial obstruction of its efforts to reassess Guantánamo. As it now stands, the “Army judge who is defying a White House request to freeze the Pentagon’s war court ruled Thursday that he has the authority to decide whether the military’s security measures at Guantanamo impair a captive’s ability to defend himself.” Interestingly, judges often ruled to curb executive detention power under Bush too, although here the upshot is to preserve the policy as is. Certainly Obama would have as much presidential power to question an executive detention as Bush had to order it in the first place.

Since Obama does not have a bold or principled agenda on detention policy, even the victories for civil liberties we might win under his term will be compromised by the inertia of the permanent bureaucracy. This fact, Obama’s CIA appointee who appears open to rough interrogation techniques, and hints that he might rely even more on extraordinary renditioning all give little comfort to those who hoped that on this one issue, Obama’s government might prove qualitatively less hostile to liberty and the rule of law than the last administration.

Anthony Gregory is a former Research Fellow at the Independent Institute and author of the Independent books American Surveillance and The Power of Habeas Corpus in America.
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