Glenn Greenwald often is compelling reading, but sometimes goes too far, including in his now familiar harsh tone against those deemed to deserve it. This includes his responses to comments, which reflects an admirable involvement with his readers, something that shows the possibilities of online commentary. OTOH, such responses also provide a chance for blithe replies that suggest the person is not taking the readers seriously. Orin Kerr, e.g., seems to do this from time to time.*
GG recently sneered that Obama's decision to move some residents of Gitmo (those not to be put on civilian trial) in a facility in Illinois was just "Gitmo North" (unmentioned is that this label is a Republican talking point). No real change. I responded in a comment (addressed not to Glenn specifically), getting annoyed at another set of "Obama is no different" complaints, that people should remember that even GG doesn't think things are that bad. Also, in at least some limited ways, the move is a change. GG responded to my "myths" with a bunch of "so whats." I might call this the "Bad Glenn."
The administration has already announced that it will rely on the Bush/Cheney theory to justify its indefinite detention power -- that Congress implicitly authorized that when it enacted the 2001 Authorization to Use Military Force.
First, the Supreme Court also accepted this "Bush/Cheney theory," and the fact it warned (as GG responded) that at some indefinite point it would no longer be sound is not really disputing the point. The Supreme Court in 2008 and lower federal courts in 2009 sent no signal that the time is about up. Since POWs were held years after WWII was over, even after the current new "Friedman unit" in Afghanistan is over, the executive would probably have lots of time. Also, Congress implicitly supported this argument by this point. To the degree Congress supports unconstitutional or otherwise bad policies (e.g., watering down habeas), it is not grand, but it does address one aspect of the "Gitmo problem."
The sentiment behind Obama's campaign vow to close Guantanamo was the right one, but the reality of how it's being done negates that almost entirely. What is the point of closing Guantanamo only to replicate its essential framework -- imprisonment without trials -- a few thousand miles to the North? It's true that the revised military commissions contain some important improvements over the ones used under Bush: they provide better access to counsel and increased restrictions on the use of hearsay and evidence obtained via coercion. But the fundamental elements of Guantanamo are being kept firmly in place.
This begs the question what the "fundamental elements" really are. The basic element was that it was some lawless place (not less law) where things were basically up to the discretion of the executive while being out of sight. This is why Obama's reliance on AUMF and the law of war, not raw executive power, matters. ("So what") Congress can further executive power as it did on FISA immunity etc., but this only underlines the breadth of the problems ofthe Bush years. The "moderate" path still is problematic. There is still some limits to discretion based on even too executive friendly statutory powers, which is why the Bush Administration fell back to the third argument. Under that one, judicial review would be barred. And, mistreatment would be winked at -- out of sight, out of mind.
This has been successfully challenged, if not to a totally satisfactory degree. Habeas review is present. The Geneva Conventions apply (how exactly is unclear, but they apply). And, since Obama came in "some important improvements" were passed regarding military commissions. Plus, for the third category who will not get them or civilian trials, Obama proposed further safeguards, including periodic judicial reviews. Thus, things have changed, if not enough. Yes, these things would still apply if they were left in Gitmo, but my overall point addressed the "nothing changed" argument.
But what made Guantanamo such an affront to basic liberty and the rule of law was far more than symbolism, and it certainly had nothing to do with its locale. If anything, one could argue that it's now more dangerous to have within the U.S., on U.S. soil, a facility explicitly devoted to imprisoning people without charges.
Gitmo was a problem for many reasons. The problem with limited rights was not limited to that area. For instance, the FISA debate underlined the concern of watering down rights and checks/balances during the "war on terror." The "lawless zone" problem has been addressed and closing it would be a major symbolic move, which often is what foreign policy means at the end of the day. Also, having the prisoners within the U.S. forces us to deal with the problem (or, at least, makes it harder to hide it), while easing their involvement with lawyers and perhaps the outside world in general (family, media, etc.). This is a far from trivial matter. And, there also might be a real legal consequence:
All this means that the pending cases can--and will--remain in D.D.C. But it also suggests that there is no barrier to a detainee filing a new petition (perhaps raising a conditions of confinement claim) in a jurisdiction that might be more receptive to the argument that the petitioner has some modicum of constitutional rights (an argument rejected by the D.C. Circuit in Kiyemba I), especially once the petitioner is physically present within the United States.
It is true that they would retain habeas protections if held in Gitmo (as compared to Bagram, though a lower court disagrees with Obama on that), but the Insular Cases (still good law, to some extent) treats various areas under our control differently, the "U.S." offering the strongest protections. It is unclear how the courts would treat (alleged) enemy aliens like these, but it is possible that the locale will help them in some cases. Since it is a reasonable path of litigation, it also might at least serve as a negotiating tactic for the lawyers involved. Again, the move matters.
Even worse, by emphasizing that Thomson will be an even more "secure" supermax than the utterly inhumane hellhole at Florence, Colorado -- even boasting that it will be the most secure prison "of all time" -- it's likely that individuals who have never been charged with any crime will be held indefinitely in a facility even worse than Guantanamo.
I don't really know how seriously to take such "boasting." It can very well be just a public relations move to deal with blowhards that try to scare us, ignoring all the other convicted terrorists in our prisons. Not being able to predict the future, and again noting that not being in an out of the way island prison has its benefits, I don't know if it will be "worse" than Gitmo. Just to remind, this does not make it the right choice overall -- that would be to try them at least in military commissions, the alternative being the distinct possibility that mistreatment or the like will "benefit" us because it will serve as an excuse on why we need to detain dangerous people who we cannot convict because of our own misdeeds.
It should also be added that they (at issue here are those who will not be tried at all) do have habeas rights, with more rights perhaps forthcoming if Obama's proposed procedures for them ever come to pass, so federal judges have put the evidence used to hold them to some sort of test. Thus, it is not akin to some tyrant just tossing people into holes with only their own say-so (the rules set up by a rump group, see, e.g., The Dark Side) as a restraint. The bar is low, and even if found not met, there is no assurance the executive will release the individuals (a matter now under review). But, the bad situation need not be exaggerated for effect -- reality is bad enough, improvements do not deny it.
That is "so what," GG et. al.
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* What is the point of his socialist professor story? The proposal would just as well mean that anti-socialists would have more power to pass their own policies. And, the Senate as currently constituted seems more "conservative" than "centrist," in that some things that the "center" wants (e.g., the public option) is not being passed. OTOH, Kerr's own philosophy leans conservative, so he gets to have his cake and eat it too.
Kerr is deemed by some as a reasonable conservative, and given some of his brethren at Volokh Conspiracy, this is true enough. But, other times, honestly, he comes off as a bit of an ass. This included his "reasonable" take on presidential power during the Bush years, that seemed reasonable at times only in comparison.