Yeah, I don't understand what the hell Obama is doing either.

I just don't get Obama's Gitmo strategy. | The Smirking Chimp:

"...Everywhere I go I keep hearing people say, "How come Obama is letting X happen or Y happen, how come he's letting his underlings do Z? It seems so unlike him!" It reminds me of the way people view leaders in Russia. Going back centuries, Russian peasants wrote impassioned letters to the Tsar, sure he was completely unaware that his Grand Dukes were all thieves and his okhranka agents were rapists and torturers. Now that Obama's on the scene a lot of Americans are demonstrating a similar public desire to believe in the good king. Obama seems so decent and intelligent, it's hard to imagine that his act is just a big sales job, that he's really just a smooth-talking shill for a bunch of Wall Street bankers and Pentagon generals. So people tend to scramble for the exculpatory explanation: he's being tricked, he's unaware, his hands are tied, and so on.

You can sort of see that, maybe, with the economic policies... But this Gitmo thing is different. It's not like Barack Obama doesn't know what habeas corpus is. The guy was a freaking constitutional law professor (or "senior lecturer," if that controversy over his academic title still rankles you). And yet Obama seems to be determined to preserve the whole concept of preventive detention...

...it's important to remember that what's going on at Gitmo has to be construed as a specific, public endorsement of preventive detention. For we all know that there has always been preventive detention of one sort or another in this country, ever since America became a world power: suspected spies whisked off in the middle of the night, political dissidents in foreign countries busted on trumped-up charges and quietly flown to someplace like Syria or the Phillipines for the car-battery-to-the-balls treatment. Hell, even here on American territory, we have a legal framework through FISA to quietly do all sorts of things to suspected miscreants. Where there is a will, and a loathed enough suspect, there has always been a way in America, no matter what the actual law is or has been.

At the same time we've tried never to allow ourselves to openly legalize these practices. When we have, like during the era of the Palmer raids for instance, it's always been a black time our history. Keeping preventive detention and extrajudicial punishment illegal puts a brake on their use: it forces the government that would use these tactics to enter a legal gray area, to risk scandal and exposure, and to take all the responsibility for crossing the line. When a thing is illegal and has to be hidden from the general public, one assumes that governments will try to exhaust every conceivable alternative before resorting to its use, or better yet will avoid using it at all. But making it legal not only transforms preventive detention into a part of all of us, a conscious expression of who we are, it suddenly makes it an easy option for governments to choose.

...I guess what I'm trying to say is that I don't get what Obama is doing here. He could have closed Gitmo, created some sort of tribunal system for the current inmates, and then stood up on a pedestal and announced that the United States is no longer a country that detains people without due process. And as soon as he finished that speech he could have gone on doing what presidents have done for decades before Bush, finding the soft spots in international criminal/military law to basically arrest and detain anyone whom they considered a genuinely dangerous suspect. But what he's done instead of that, seemingly, is specifically endorse preventive detention. He apparently is anxious for people to know that that is in fact what he stands for..."