In and of itself, electing Barack Obama represents a symbolic victory in the war on terror. In a statement concerning the tape that Ayman al-Zawarhiri, a high-level al-Qaeda agent, released today, Richard Clarke said:
Obama's election has taken the wind out of al Qaeda's sails in much of the Islamic world because it demonstrates America's renewed commitment to multiculturalism, human rights, and international law. It also proves to many that democracy can work and overcome ethnic, sectarian, or racial barriers.
Obama's commitment to withdraw from Iraq also takes away an al Qaeda propaganda tenet: that the U.S. seeks to occupy oil rich Arab lands. (Hat tip: Joe Klein)
But having scored this symbolic victory, there is still the larger problem of the legal apparatus created by the Bush administration's response to the terrorist attacks of 9/11. Any advances that Obama's election represents will be short-lived if the new administration does not fundamentally alter the course of the war on terror. This means not only deescalating the war in Iraq, but revamping the system by which terror suspects are detained and interrogated.
Unfortunately, there are no easy answers. By executive order alone, Obama can and should halt interrogation methods widely understood as torture, but prosecuting and then imprisoning or releasing detainees will be more complicated. The President-elect may have promised to close Guantanomo, but the Guardian reports that Obama's legal advisers "do not see how Guantanámo can be closed within the first months of his administration."
As Barney Frank once said of the financial crisis, "No solution to a problem can be more elegant that the problem itself." The moral and legal limbo that Dick Cheney and his cabal of legal advisers created in order to deal with terror suspects was worse than inelegant--it was both morally and strategically wrong. But the problem it was meant to solve remains: since this is not a war being waged with a sovereign state, detainees cannot simply be treated as prisoners of war. So the question is: what do we do now?
Scott Silliman, an expert on military law at Duke University, said Congress would have to empower a new court system to try the detainees, which would take time.
It would also be politically unpopular to keep the terror suspects in the US, with critics suggesting that could provoke retaliation from al-Qaida. The Pentagon concedes it has no evidence to charge the majority of the 250 detainees with terrorism.
Obama would return those prisoners to a third country, and in some cases the US would demand assurances that they would remain under surveillance. The process is further complicated by the fact that 50 or 60 of those detainees are men without a country. They are unable to return to their own country, and no other country will take them.
I'm not a legal or a political expert, but it seems to me that any political fallout that results from bringing these suspects to the United States and trying them in a U.S. court of law would be worth it. For in the long run, Guantanamo may prove to be an even more powerful symbol than Obama himself.