Amid the relief occasioning Hillary Clinton’s intervention that led to the plea agreement resolving the military commission prosecution of Omar Khadr, some curious comments were reported in the media during the period just before the deal was consummated. For example, The New York Times reported on October 15, 2010, that “Obama administration officials have privately expressed dismay about Mr. Khadr’s trial, which they see as undermining their efforts to redeem the reputation of the military commission system.” That article also stated that “[t]o the administration’s dismay, . . . the first case to reach trial under the revamped [military commission] rules was Mr. Khadr’s.”
That leads inexorably to the question: Who’s in charge here? Is the U.S. now like Pakistan, in which the military and intelligence apparatus constitute an independent government that is not subject to civilian dictates and control? The commander in chief, and therefore the person of ultimate authority over the military commissions, is the president himself. And the Department of Defense, a Cabinet-level agency that takes instructions from the chief executive, operates the commissions and controls the prosecutorial and administrative functions. A simple telephone call from the White House, or proverbial stroke of presidential pen, could have discontinued the Khadr prosecution, or stayed its proceedings indefinitely, or facilitated the same settlement ultimately reached by directing the prosecution to offer it. How could the president or his minions be “dismayed” over the continued actions of a government agency over which he exercises total control. Or does he?
Apparently not. When President Obama, two days after assuming office, issued his executive order that “halted” “all proceedings” pending in the military commissions, many aspects of the commissions, such as competency hearings for defendants in the 9/11 case, and ordinary proceedings in the Khadr case and others, continued unabated. Was there a problem with the commission fax machine? Was it one of those instances in which the Guantanamo base Internet was down?
Hardly. It was simply insubordination, and the belief, and then, when corrective action was not forthcoming, the knowledge that such refusal to obey the commander in chief would not be overridden or punished. Indeed, the commissions resumed without benefit of a rules manual, and it is unclear whether the president’s order halting the commissions has ever been formally rescinded. It is frustratingly ironic that when the commands were unlawful – to torture, to deceive the International Committee of the Red Cross, to lie to Congress, to wiretap illegally – there appeared to be little hesitation to “follow orders.” Now, in contrast, lawful orders have been ignored, and that insolence has gone unchecked and undisciplined.
In that context, the question also arises: Why did Secretary of State Clinton have to act as the indirect broker between the White House and the Department of Defense? How about a direct order through the proper and traditional chain of command: from the president to the secretary of defense? Another irony, indeed, as while throughout the Bush administration the controversy was the president’s regular and unilateral exercise of powers that were not his, now we have a president who declines to assert the authority that is unquestionably his, and to which no one could object.
Which returns us to the initial question: Is the president in charge of the Defense Department and, in particular, the Guantanamo military commissions? If so, how about demonstrating as much? Policy pronounced is meaningless unless implemented and, if not implemented, merely invites continued and broader defiance, and disrespect for those who fail to enforce it.
Copyright © 2010 by Joshua L. Dratel