(photo: Paul Keller on Flickr)

An editorial in Tuesday’s New York Times praises as “A Step Toward Fairness” a ridiculous new proposal from the Obama administration that will keep a number of Guantanamo prisoners in legal limbo with no hope of a real judicial hearing on their status. At the same time, it appears that there will be no effort to close Guantanamo, now approaching more than a year past Obama’s target for closing it. Little wonder, then, that Tuesday’s Times also reports that erstwhile rival insurgent groups in the Afghanistan-Pakistan border area now seem to be setting rivalries aside to attack US interests. Keeping Guantanamo open only feeds such hatred against the US that rivals will team up.

The “step toward fairness” heralded by the Times seems to have no basis in known law to be announced in an Obama executive order:

The proposed order could give these prisoners a form of legal representation and a system to review their cases. It would not remove the tarnish to the American justice system of holding prisoners without trial. But it could represent a significant step forward in dealing with these cases and possibly reducing their number.

The order, which could be signed by the president as early as next month, would require periodic review of each prisoner’s case by a kind of parole board drawn from agencies throughout the executive branch and not just the military.

This board would regularly assess whether a prisoner still represented a danger to public safety or was safe enough to release. The prisoners would have access to an outside lawyer, if they requested one, and would also be allowed an advocate within the system — a change from the Bush administration’s policy of allowing them only a “personal representative,” who was unable to help them make the case for release.

The Times (and the Obama administration) still doesn’t understand the nature of evidence obtained under torture. The editorial laments that some prisoners can’t be tried because the evidence against them “was obtained through torture”, but it omits consideration of the fact that the reason that evidence obtained under torture can’t be used is because torture victims will say anything to make the torture stop. If a prisoner is held only because of evidence obtained under torture, then there would seem to be no reason to hold the prisoner. If there is independent evidence that would indicate a prisoner is a risk, then the prisoner should be tried on that evidence. A real judicial process, with proper rules of evidence, could and should be used to determine whether a prisoner should be held. The proposal to use a “parole board” type process is laughable on its face. And yet, even with this ridiculous substitute for a legal process, the Times editorial notes that Congress will fight even this plan and praises Obama for “the work of bringing fairness to the justice system at Guantánamo”, which they state Congress should not thwart.

The Times also noted on Tuesday that rival insurgent groups are working together in the Afghanistan-Pakistan border area:

New intelligence assessments from the region assert that insurgent factions now are setting aside their historic rivalries to behave like “a syndicate,” joining forces in ways not seen before. After one recent attack on a remote base in eastern Afghanistan, a check of the enemy dead found evidence that the fighters were from three different factions, military officials said.

In a bit of blindness, the Times accepts at face value the explanation that this teaming up of rivals is only in response to the “withering attacks” from the recent NATO offensives:

The change reveals the resilience and flexibility of the militant groups. But at the same time, officials say, the unusual and expanding alliances suggest that the factions are feeling new military pressure. American and NATO officials say these decisions by insurgent leaders are the result of operations from American, Afghan and allied forces on one side of the border, and from the Pakistani military — and American drone strikes — on the other.

The article contains no references to the ongoing process of holding many prisoners without charges and on the basis of evidence obtained only under torture. There really is no hope of improving the situation in Afghanistan and Pakistan if the only strategy to employed by the US is to keep increasing attacks while never allowing a true legal process for the prisoners held at Guantanamo and elsewhere.