There are many hypothetical legal procedures that Obama could be talking about when he says - "We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our Constitution". But there should be no doubt that a parallel system of justice is being crafted to deal with the "unique problem" of Gitmo. I have yet to hear the simple truthful answer that "our Constitution can handle it". So if you’re looking for some good news on what’s in the works, then you should click on a different diary, seriously. Follow me below the fold for an outline of the probable new legal system, with details provided by other "Western Democracies" that serve as our model for how to handle these "tough terrorism" cases.
In a functioning democracy there would be an open debate about what the "new law system" being crafted entails and what it hopes to accomplish or sweep under the rug, but that's not happening here. In a new era of transparency there should be no legal or moral reason why this is all being done behind closed doors and it's hard to make a compelling argument that this is all being done on the hush-hush because it's going to be progressively awesome and widely accepted.
The cliché "Obama is going to close Gitmo" is meaningless unless you explain what he is going to open instead, because he admits that there is a second part to that equation- they will produce some new system, that they "must" create a new way to deal with it.
CBS news
"the plan could require creation of a new legal system to handle the classified information inherent in some of the most sensitive cases...The plan being developed by Obama's team has been championed by legal scholars from both political parties. But as details surfaced Monday, it drew criticism from Democrats who oppose creating a new legal system and from Republicans who oppose bringing terror suspects to the U.S." -
There has been no new definition of "terrorism" established, no progressive input, no challenging of the GWOT paradigm, so be prepared to hear arguments like this-
Measures such as the draft Terrorism Bill, the list of unacceptable behaviours, the Government’s intention to deport non-UK nationals suspected of terrorism, the measures announced by the Prime Minister on 5 August, the possibility of allowing sensitive evidence to be adduced in criminal trials, the possibility of establishing a judicial role in the investigation of terrorism crimes and the development of a ‘shoot to kill’ policy; are all, in our opinion, counter-productive and can potentially undermine the status of human rights in the UK.
from British Irish Rights Watch NGO
Never happen here, right? Listen to the end of Democracy Now’s radio report on how the Irish labor groups that donated money to the families of Irish political prisoners were taken over by Federal agent provocateurs, with the intent of Federal Agents diverting US money to Irish terrorists, in an effort to end the Irish labor movements ability to support overseas comrades. This was in 2001, right before the attacks. http://www.democracynow.org/...
So this Unconstitutional concept will easily adapt to American public law, being made "constitutional" by Congress, just as the all the other wiretapping, torture policies are "legal" -
The offence "encouragement of terrorism" is so vague as to be meaningless. It is virtually impossible to prove that someone "knows or believes", still less "has reasonable grounds for believing" anything. It is harder still to prove that someone publishing a statement knows or believes what the general public’s understanding of that statement will be, especially when that understanding can encompass indirect threats. The proposal dissolves into thin air when it posits the idea that no-one need in fact have been encouraged or induced to commit any offence.
From the same British Irish Rights Watch NGO
Of course the fine intellectuals at The Brookings Institute have been on the case for you and they have great news-
July 15, 2008 —
Thank you for the opportunity to testify. I’ve spent the last several years trying to glean lessons from Europe’s long and troubled history with terrorism. I think it is a worthwhile effort and I commend this commission for this effort on the issue of detention...The problem of creating a system of norms and laws for detaining terrorism suspects has been a challenge for every democratic government that has faced a terrorist threat. The system of detention established in the United States after 9/11 has come under much justifiable criticism, but we should not infer from those errors that the U.S. government did not correctly identify an inadequacy in existing laws and practice. Terrorism always challenges existing legal regimes. One result is that effective and accepted standards for the detention of terrorism suspects are not well defined by the laws of war, by international human rights law, or by the domestic law of any democratic country that I have studied...Pre-trial detention (in France) can last for up to four years in terrorism cases with the investigating magistrate effectively determining the pace of the investigation and therefore the trial.
It would be nice if there were some progressive think-tanks creating Obama's new system of justice to deal with Gitmo, but I see no evidence of it. I can just imagine how this type of special "terrorism law" would have played out during the McCarthy era. The government had no end to the list of movies, music, plays, reporters, actors/actresses, and newspapers all supporting the Reds. It really was all about the labor movement back then and I truly believe that the war on terror is designed to repress the anti-globalization movement now.