After the flop in the Ahmed Ghailani trial and the bipartisan hostility towards moving Guantanamo Bay detainees to New York City for trials in federal court, the Obama administration has two choices.  One, they could reverse their earlier decision to bypass the military commission system that Congress has authorized on multiple occasions in order to finally adjudicate the cases of those captured abroad by military and/or intelligence assets for terrorism, including the 9/11 plotters.  Alternately, they could sit on their hands and pout.

I guess it’s Option 2:

The Obama administration is preparing an executive order that would formalize indefinite detention without trial for some detainees at the U.S. military prison at Guantanamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration, U.S. officials said. …

However, almost every part of the administration’s plan to close Guantanamo is on hold, and it could be crippled this week if Congress bans the transfer of detainees to the United States for trial and sets up steep hurdles to the repatriation or resettlement in third countries of other detainees.

Officials worked intensively on the executive order over the past several weeks, but a senior White House official said it had been in the works for more than a year. If Congress blocks the administration’s ability to put detainees on trial or transfer them out of Guantanamo, the official said, the executive order could still be implemented.

“I would argue that you still have to go ahead because you can’t simply have people confined to a life sentence without any review and then fight another day with Congress,” the administration official said. “One of things we’re mindful of is [that] you can’t have a review conducted by the same people, in the same process, who made the original decision to detain. You have to have something that is different and is more adversarial, which the Bush administration never had.”

The Bush administration worked with Congress three times to produce the current military commission system.  It wasn’t just the Bush administration that built it, and the final version was approved by a Democratic-controlled Congress.  Furthermore, the Obama administration has already said that they would use precisely this system with some of the detainees. Even at that time, people wondered why the commissions were good for some and not for others — especially the highly problematic cases of Khalid Sheikh Mohammed and the rest of the 9/11 plotters.

What they wanted, though, was a splashy federal-court trial with the biggest fish to prove a point.  Unfortunately, that blew up in their faces with the Ghailani trial, when the attempt to fit in evidence not collected by following the rules for civil criminal cases got tossed — properly — by the presiding judge.  Eric Holder had scoffed at reservations expressed by members of Congress about this very problem, insisting that his team could get such evidence admitted without exposing crucial intel assets.  In the end, those reservations were founded on solid ground, and Holder ended up embarrassing himself.

Instead of going back to the thrice-approved military commissions, the Obama administration is petulantly insisting on not adjudicating the cases at all.  They want to once again impose “prolonged detention,” which functionally means the same as “indefinite detention” — which Barack Obama heavily criticized during his presidential campaign.  And instead of going back to Congress to make changes to the military commission system, as Bush did, Obama wants to change them by executive order instead.  I wonder where Barack Obama’s high dudgeon over the “unitary executive” went?

Jazz Shaw is less than impressed in the Green Room:

Going through the details of this plan, a shorter translation might be, “We still oppose the policies of George W. Bush regarding indefinite detention without trial for any suspect, so we’re going to handle every aspect of the situation differently unless we can’t.” …

This is shaping up to be yet another case where President Obama’s campaign trail promises of righting the perceived wrongs of the previous administration have slowly morphed into doing precisely what George W. Bush was doing.

It’s Hypocrisy Theater, with an opening act of spin.