Sep 15 2010

In Prison Forever Without Trial

If this sounds like something out of a Dumas novel, imprisoned on the word of an unknown person without charges, no legal representation or trial, held on an isolated island in a tiny cell with the only contact your jailers who are free to torture and torment you and your fellow inmates, you’d be wrong.  This is the military prison at Guantanamo Naval Base in Cuba where the United States has held people from all over the world who have been charged as enemy combatants since 9/11 during the never ending, nebulous “war on terror”. President Obama promised during his campaign to close it and after his inauguration, he set a deadline of one year to shut it down that has come and gone months ago.

In a Washington Post Op-Ed, Jack Goldsmith, a Harvard Law School professor who served as an assistant attorney general in the George W. Bush administration, has some suggestions for the dilemma that Guantanamo poses, not all of them are legal or constitutional. There are two problems that Mr. Goldsmith attempts to address, closing Guantanamo and trials for the detainees.

Jack Goldsmith: A way past the terrorist detention gridlock

Nine years after Sept. 11 and 20 months into the Obama presidency, our nation is still flummoxed about what to do with captured terrorists. The Obama administration is stuck about where the Bush administration was, with little hope in sight for progress.

Guantanamo Bay has proved harder to close than the Obama administration anticipated. Many terrorists there are too dangerous to release and, for a variety of evidentiary reasons, cannot be brought to trial. Our allies have taken fewer detainees than we would like. These men will thus have to be held in U.S. custody. But neither Congress nor the American people is keen on transferring them to the United States…..

Difficulties with trials have left the Obama administration, like its predecessor, relying primarily on military detention without trial to hold terrorists. Courts have given their general blessing to military detention as a legitimate form of terrorist incapacitation. But military detention still raises hard legal questions, about which Congress has said practically nothing. As a result, unaccountable judges are making fateful detention decisions, demanding release of some whom the administration thinks are dangerous terrorists. President Obama pledged last May to seek congressional clarity on detention but has yet to follow through. The abundant dysfunctions in our system for incapacitating terrorists have led to increased reliance on targeted killings and outsourced renditions, neither of which is optimal from an intelligence-gathering perspective. . . .

First, give up on closing the Guantanamo Bay facility.

Second, acknowledge that military detention will remain the primary basis for holding terrorists, and strengthen the system.

Third, stop using military commissions, which are a good idea in theory but have for nine years proved unworkable in practice.

Fourth, separate the legitimacy of civilian trials from the security of such trials.

Fourth, separate the legitimacy of civilian trials from the security of such trials.

So, Mr. Goldsmith blames the courts for giving the OK to military detention, tribunals and, heh, those damned “unaccountable judges are making fateful detention decisions, demanding release of some whom the administration thinks are dangerous terrorists”. Blame Congress for not clarifying what is a blatant disregard for the Constitution and International Law by two administrations.

How is any of this Constitutional? Indefinite Detention without trial? How do you legally, constitutionally hold a person indefinitely because someone says they are too dangerous to release? The government can do this to anyone, for any reason. This was not acceptable under Bush, how is it any more acceptable under Obama?

How does the US maintain face in the International community when it decries war crimes that itself commits and lamely tries to hide?

As for for his 5 solutions, I agree with not seeking the death penalty just not for the same reason of “the hard legal and political problems in trials — including the use of classified information and coerced confessions — arise in the penalty phase, when defendants can seek and introduce any conceivably probative evidence.” Well, the 9th Circuit Court may have helped solve part of that problem for the government.

THe rest of his suggestions to keep Guantanamo open and try the detainees in civilian courts are just convoluted legally or logistically impossible.

This is just a poorly argued excuse to curry Republican favor and fuel the fear mongering that Guantanamo cannot be closed.

h/t Marcy Wheeler and Spencer Ackerman @ FDL


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  1. TMC
  2. NotAffiliated

    Obama’s solution seems to be that we ought to simply assassinate citizens turned baddies, which avoids the whole imprisonment question. There’s nothing about depriving you of your life without due process in the Bill of Rights, is there?

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