There are stories going around the intertubes this morning The Associated Press is reporting that President Obama will issue an executive order today soon closing Guantanamo.  Although that very well may be true, it hasn’t happened yet.  There’s nothing on the new White House website, which includes a page dedicated to publishing all executive orders issued by the President (which in and of itself is a first).

But that doesn’t meant there hasn’t been progress:

In the first hours of his presidency, President Obama directed an immediate halt to the Bush administration’s military commissions system for prosecuting detainees at the detention center at Guantanamo Bay, Cuba.

Among other cases, the decision will temporarily stop the prosecution of five detainees charged as the coordinators of the Sept. 11, 2001 attacks, including the case against the self described mastermind, Khalid Shaikh Mohammed.

Notice of the decision came in a legal filing in Guantanamo by military prosecutors just before midnight Tuesday. The decision, which had been expected as part of Mr. Obama’s pledge to close the detention camp, was described as a pause in all war-crimes proceedings there so that the new administration can evaluate how to proceed with prosecutions. . . .

The prosecution filing Tuesday said the order came from the Secreatary [sic] of Defense, Robert M. Gates, “by order of the president.” It described the halt in all proceedings as designed “to permit the newly inaugurated president and his administration time to review the military commission process, generally, and the cases currently pending before the military commissions, specifically.”

The good news is that the judges in the pending cases appear willing to go along with the Administration’s request (they could have refused).  As the Washington Post reported just a few minutes ago,

A U.S. military judge Wednesday suspended the trial of five detainees accused of involvement in plotting the Sept. 11, 2001, terrorist attacks, acceding to a request from military prosecutors in accordance with a directive from the new Obama administration late Tuesday.

The suspension halts until late May the trial of Khalid Sheik Mohammed, the avowed mastermind of the Sept. 11 plot, and four other accused al-Qaeda members, even though Mohammed and three of the four objected to the delay.

This is a good first step, and, more importantly, the right one.  Before the Administration can close Guantanamo, it must decide what to do with the 245 individuals currently held there.  Although many if not most of those can be released to their home countries (or in cases where there is a fear of torture, other countries willing to take them in) there are a few, such as Khalid Sheikh Mohammed who cannot just be let go.  The Obama team favors using domestic federal courts to prosecute these folks — using, I imagine, the precedents of the 1993 WTC bombing and 1998 embassies bombing prosecutions.

But it can’t commit to that step until it figures out just what happened under Bush.  If any of the people most worthy of prosecution were tortured — and let’s not kid ourselves:  those are the ones most likely to have been tortured — it creates real problems for any domestic prosecution.

That in turn may force the Obama Administration to reconsider how it can respect the rule of law and still hold the worst of the worst accountable — which may in fact me some sort of radically reformed military commission system.  I doubt that anyone in the Administration wants that to happen, but they would be foolish not to leave that option open if the Bushies totally screwed up any chance of a domestic prosecution.

The bottom line is that this is the right way to go about it.  Ordering a quick closure of Guantanamo without first addressing what to do with the detainees would merely be a continuance of the the knee-jerk policies of the previous Administration, albeit in the exact opposite direction.  The last thing Obama wants is to release some of these guys and have them mount a major terrorist attack.  He and his team are smart in doing this slowly, carefully, and methodically.  It’s the best way out of the mess.

So for those who fear Obama won’t close Guantanamo or reverse the previous Administration’s policies on torture and rendition, relax.  Expect an executive order in the next few days laying out a timetable for closure (and perhaps an official reversal of other policies).

But we need to give Obama’s new team the chance to do their job in a manner that reflects the complexity of the problem, and not merely its symbolism.

Related posts

• The New Executive Orders: Guantanamo, Torture, Detainees
• Johnson and Johnsen
• Closing Guantanamo: Only The End of the Beginning
• The First Executive Order. . . ?
• Powell, Obama, and Torture