One of the very first things President Obama did when taking office was sign an executive order promising to close the Guantanamo Bay prison camp within a year. This move was great news to civil libertarians, since the Gitmo Gulag* is one of the worst stains on the American legal system in its history.

The one year window that Obama gave is almost up, and his Attorney General Eric Holder has recently said that closing the prison by the January 22nd deadline may not be a done deal, thanks to a vote in the Senate last May that denied the Obama Administration the funds required to do so. But as the LA Times noted in a great article last Thursday, the 200 detainees that are still caged off the shores of Cuba may receive trials sooner than we think.

Last week, however, the Senate approved and sent to Obama a budget measure that allows the government to continue transferring detainees here as long as it develops new guidelines and provides 15 days’ notice before a prisoner is moved.

That legislation will make it easier to close the now infamous detention center, where the population has dwindled from nearly 800 to 220, 75 of whom have been cleared for release. But it won’t resolve the question of whether the remaining detainees will be tried in federal court, as they ought to be, or before military commissions. Nor does it clarify what Obama plans to do with detainees he says “cannot be prosecuted yet who pose a clear danger to the American people.” As we have said before, indefinite detention is repugnant to the U.S. legal tradition and should be a last resort.

This legislation is definitely a step in the right direction, but as the article stipulates, there is an important question that is crucial to the fate of the detainees: where will they be tried?

If they are tried in civilian courts, then there will be an excellent chance that they will be freed due to the nearly non-existent evidence against over 90% of the people held there since 2002. Nearly all of the Gitmo prisoners are completely innocent, guilty of either being in the wrong place at the wrong time, the victims of unsubstantiated claims or bribes, or who defended their homes and families from US invasion.

Unfortunately, too many Americans view these detainees as “terrorists” who don’t deserve rights, let alone a fair trial. Our government would never persecute, torture, and even kill innocent people to advance its own agenda, would they? Just look at the rubble the US government left in Waco, Texas and Ruby Ridge, Idaho.

It is highly likely that when faced with this political climate, Obama will cave and try them in military courts, where they probably will be found guilty and locked up indefinitely. I hope I’m wrong, and Obama might do the right thing and restore some sanity to our fractured legal system.

If he does, it will benefit all of us, since the policy of “preventive detention” that the Bush Administration used to justify sweeping up thousands of people around the world and locking them away included Americans citizens as well. But considering Obama’s aggressive and reckless militarism (the increase of drone strikes and nation-building in Afghanistan, shelling Somalia), it’s hard not be a cynic.

*Andy Worthington, the brave Guantanamo Bay chronicler, will be in San Francisco next month promoting his new movie, Outside the Law: Stories from Guantanamo. There are also screenings in Berkeley. Worthington is an expert on US policy at Gitmo, and I urge everyone to see the movie, or at least visit his website.

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