Back on May 22, 2009 The Washington Post reported that President Obama allowed that some detainees at Guantanamo Bay may have to be held without trial indefinitely as one of the issues raised by the closing of the military prison in Cuba.
NPR reports that The Brookings Institute now claims it has come up with better rules for terrorism trials.
At GITMO and elsewhere overseas at various CIA sites we have people the Bush administration kidnapped, held without rendition, and tortured. Some of them have been released after the better part of a decade of captivity and some couldn't hold out that long and have died under these conditions.
The Obama administration is now responsible for those people the Bush administration presumed might be quilty without the nicety of a trial, and the legal "scholars" at the "Liberal" Brooking Institute are now engaged in wondering how you continue to imprison people who can't be prosecuted.
The Brookings Institute frames the issue as tripartite.
The Bush Administration and others who generally view terrorism as a military problem did not prioritize criminal trial at all and favored trials by military commission whenever possible, arguing that traditional criminal trials in federal court are hamstrung by rules of procedure that make them not merely ineffective to secure convictions but affirmatively dangerous to national security.[ii] They correctly point out that military commissions are not a jury-rigged invention of the post-September 11 world but are a well-established method of trying war criminals.[iii]
Civil libertarians contend that the traditional laws of war cannot be transferred without change to a potentially endless war on terror; that the current system of military tribunals lacks credibility and is legally flawed; and that the alleged inadequacies and dangers of criminal trials have been vastly overstated.[iv] They therefore argue that all terrorism trials should take place in federal courts under traditional rules.
Finally, a third group argues that we need a special tribunal of some sort—a so-called "national security court"—with special rules to overcome the problems attendant to trials in federal court.[
Back in May the issue was Guantanamo detainees
"The issue is framed pretty exclusively in terms of existing Guantanamo detainees," said Tom Malinowski, the head of Human Rights Watch's Washington office. "There is a big difference between employing an extraordinary mechanism to deal with legacy cases compromised because of Bush administration actions and saying we need a permanent national security regime."
Now we are talking legislation to create a National Security Bar.
Congress could significantly ameliorate, if not entirely eliminate, these problems by authorizing the creation of a National Security Bar—a permanent corps of security-cleared lawyers who would be available to represent defendants in terrorism-related cases—and changing the rules for handling classified evidence when a defendant is represented by a member of this new bar. Many former government lawyers or others already have security clearances and have shown that they can be trusted to protect government secrets just as much as prosecutors. Composed of such lawyers, a National Security Bar would have full access to all classified information that is subject to disclosure in representing their defendants—access as unencumbered as if no national security issues were involved in the case at all. They would participate in all court proceedings about classified information—proceedings that are often now held on an ex parte basis. To the extent that other detained terrorists are potential witnesses, cleared counsel could participate in depositions of these witnesses. But they would be barred from disclosing classified information to their client or to any co-counsel who is not also a member of the National Security Bar.
In May Obama said "We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country," Obama said. "But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States."
I would hope that as a "constitutional scholar" President Obama would realise that in America we prosecute suspects with a trial. The need for a "National Security Bar" is about as urgent as the need to bring the Bush administration back so we know who our enemies are.
Apparently the idea has now surfaced that its in the "National Security interests" of the United States that any non American Citizen accused of terrorism must be presumed quilty and thus trials are no longer necessary, and the human rights guarenteed by the constitution are a luxury we can no longer afford.
In May the president stopped short of saying he would advocate legislation to institutionalize indefinite detention for future captives, but it now appears that our Justice Department has authorized think tanks to draft legislation and the Brooking Institute has done exactly that.
They can't be prosecuted because we have treated them in such an illegal fashion already that if their case ever came to trial it would be thrown out on its ear; yet we continue to presume that because we have labled them terrorists they might possibly be quilty of thoughts which might conceivably make them dangerous to the United States.
Michael Ratner, president of the Center for Constitutional Rights, said employing preventive detention simply because some cases at Guantanamo are too difficult to prosecute would involve the kind of legal expediency that Obama said was a hallmark of his predecessor's policies.
"My question is not only what happens to those people who may be perpetually in prison but what kind of precedent does that set for the future?" Ratner said. "It's not one I find constitutional or acceptable. Opening that door even for a few Guantanamo detainees is anathema. He is closing Guantanamo physically, but he's repackaging it with a little more legal gloss."
The Supreme Court has already ruled that detainees are entitled to a judicial review of their detention.
In May it was reported that "Obama did not lay out the legal underpinnings of preventive detention, speaking only of "a system that involves judicial and congressional oversight." He could hold detainees under a law-of-war theory that they are combatants or, more radically, create a national security court under domestic legislation to back such a detention system."
In May we were told that there were advocates of indefinite detention backed by judicial review. One that was mentioned was Jack Goldsmith, head of the Office of Legal Counsel in the Bush administration and now a law professor at Harvard University.
They recognize that given 1.) "the war against al-Qaeda" is indefinite, 2.) the likelihood of mistaken identity is much higher than in traditional warfare in which combatants wear uniforms, 3.) many of those detained are citizens of allied countries that do not view the conflict as a war and regard terrorism as an exclusively criminal matter, the only sane thing to do is let the prisoners go and yet they continue to argue against doing what is right and proper under our laws.
Apparently Obama was listening when in May at the Center for the Constitution at James Madison's Montpelier in Virginia Goldsmith said
"I don't think that those reasons argue for ending the detention rationale; I think they argue for being a hell of a lot more careful with the detention rationale, for making sure that we minimize mistakes, that we don't have erroneous long-term detentions,"
Under pressure from Cheney, other Bush administration officials and the right to be tough on terror, Obama adopted the position any system of detention "must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified." Goldsmith and other scholars have said such oversight could include annual or bi-annual reviews by a national security court in which the government's burden of proof to extend detention increases over time.
An interagency panel led by the Justice Department is examining long-term detention policy and is expected to report this summer.
Back in May Obama laid out four categories that would apply to the 240 detainees remaining at Guantanamo: 1.) those who cannot be tried but must be held, 2.) those who can be tried in federal court, 3.) those who will be brought before revamped military commissions,4.)those ordered released by U.S. courts most of us probably expected only items 2 and 4 would be seriously considered.
Obama described preventive detention as the most difficult issue raised by Guantanamo. "Examples of that threat include people who have received extensive explosives training at al-Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden or otherwise made it clear that they want to kill Americans," he said.
How receiving explosives training at an Al Qaeda camp would differ from having received explosives training at a right wing militia camp, or how having been employed as a mercenary to kill people of any nationality for money would differ from an alleigance to an individual, or how having at some point in the past argued for the killing of Americans differs from what so many right wing commentators do everyday as allowed by our freedom of speech, I don't understand. What prevents the extension of these rules for preventative detention to employees of Blackwater and Glen Beck?
Apologists claim that while Obama did not say why those offenses could not be prosecuted, legal scholars like John Yoo argue that some intelligence may be too raw for court and that some offenses now considered material support for terrorism were not crimes until counterterrorism laws were expanded after Sept. 11, 2001.
If your mind works like that and I'm in charge of determining where the justice lies I'd allow you should consider yourself a good candidate for a cell at GITMO
If there is so much "evidence tainted by the abuse of prisoners" that prisoners can't be tried and have to be released, I'd call that chickens coming home to roost and not deal with it by continuing to make matters worse.
Susan G. Crawford, a Bush appointee, told The Washington Post in January that In the case of Mohammed al-Qahtani, a Saudi who allegedly planned to participate in the 2001 attacks, the Pentagon official in charge of referring detainees to trial before military commissions decided not to prosecute. "his treatment met the legal definition of torture and that's why I did not refer the case."
Now that the Republicans are gone maybe its time to pull Obama aside and explain why we voted for him and our lovely Democrats and what we expected at the time. We should be looking at war crimes trials for the Bush administration, an end to war, a focus on the economy, healthcare, education, alternative energy, global warming, human rights and keeping some of his campaign promises.