Opinion: Obama's Gitmo Flip Flop is a Win-Win

Though no one would have guessed it during his inauguration week over two years ago -- when President Barack Obama boldly ordered the closure of Guantanamo's detention facilities and the immediate suspension of military commissions -- he has just reversed course and lifted the ban on military trials for detainees.

And as most would also find surprising, it's actually a win-win for his administration.

First, it shows conservatives and independents that Obama is willing to govern from the center. Polls show most Americans support holding al-Qaida and Taliban-linked enemy combatants at Guantanamo -- off the battlefield and away from our country. Going ahead with military commissions is the pragmatic thing to do, since Congress has effectively tied the administration's hands on Gitmo, while terror victim groups still demand justice.

Second, Obama's liberal base will take encouragement from his reaffirmation of the goals of closing Guantanamo and charging terror suspects in federal court. As an added bonus, the first detainee likely to be recharged at Guantanamo (Abd Al-Rahim Al Nashiri, a Saudi national of Yemeni descent thought to have masterminded the attack on the USS Cole in 2000) was one of only three detainees who were actually waterboarded. This means the administration will have a chance to criticize the Bush administration over detainee treatment hundreds of times throughout his trial.

In all fairness, while moving forward with military commissions may seem like a profound shift to the center on behalf of the administration, the practical effect will result in a largely "business as usual" approach for the Pentagon and Justice Department, both in policy and in practice.

This is primarily because Obama's Day One halt on military commissions applied to new cases. Since a few of the lower-level cases that began under the Bush administration went on as scheduled -- resulting in three convictions -- the total count under both administrations stands at six charged, six found guilty.

And contrary to the baseless, yet often repeated, claims from Guantanamo critics that military commissions were somehow unduly harsh or unfair to those on trial, it is noteworthy that two of the six -- David Hicks and Salim Hamdan -- served relatively light sentences and are free men back in their native Australia and Yemen, respectively.

The most dramatic change that Obama had tried regarding commissions was dropping the charges against five 9/11 plotters, including Khalid Sheikh Mohammed, in favor of bringing them before a federal judge on the U.S. mainland. Public backlash in early 2010 scuttled those plans. The executive order this week and the supporting statement, which noted that "we will continue to draw on all aspects of our justice system ... to ensure that our security and our values are strengthened," leaves open the possibility of trying that option once more.

Attorney General Eric Holder spelled it out more clearly by stating, "It is essential that the government have the ability to use both military commissions and federal courts as tools to keep this country safe."

One would have thought that both Obama and Holder would have learned their lesson in U.S. v. Ghailani, in which they secretly moved Guantanamo detainee Ahmed Ghailani to a civilian court in New York and just narrowly averted disaster at his trial late last year.

Charged in the 1998 East African embassy bombings, Ghailani, a Tanzanian national, was acquitted of 224 counts of murder plus some 60 other related charges -- yet was illogically found guilty of just one charge of conspiracy to destroy government buildings. Miraculously, he received a life sentence for that one charge.

So despite a mountain of evidence against Ghailani, "jury peculiarities" nearly resulted in a mistrial. Which is why, considering the high risks associated with freeing terror suspects in an era where just a few can kill thousands, civilian juries should be viewed as a dangerous prospect.

And so we return to Gitmo for military commissions. For the lower-level cases, in which dozens of Gitmo's 172 detainees are in the mix as candidates -- they ought to go off with little fanfare, as the last three Obama trials have done.

As for the so-called "trial of the century" for 9/11 suspects, no one is sure at this point whether they will be recharged in their military commissions case, which saw pretrial hearings and related preparations at Gitmo from June 2008 through January 2010, or whether the administration will attempt another transfer stateside.

The jury is still out on that one.

The author is a communications consultant to several Washington, D.C., think tanks and a retired Navy commander who served in the Office of the Secretary of Defense from 2005 to 2009 as the Pentagon spokesman for the Western Hemisphere. For more information, go to jdgordoncommunications.com.