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Today's Washington Post has a front-page, top-of-the-fold article on "New Detainee Site in U.S. Considered,"  But the misleading headline betrays the real troublesome part of the story: a U.S. facility for Guantanamo detainees that would contain courtrooms to hold federal criminal trials and military commissions, and provide indefinite preventive detention.

What's really at issue here is not just reinventing the wheel by saddling Kansas or Michigan with one more unnecessary jail--we have the Supermax in Florence, Colorado, where the worst of the worst are housed.  The real issue is that this theoretical  detention facility would ressurect the thrice-failed military commissions to prosecute terrorism suspects, and would be used to hold some prisoners in preventive indefinite detention.  Guantanamo at Kansas.

I'm all in favor of closing Guantanamo and trying its detainees in federal civilian court, but legitimizing the kangaroo system at Guantanamo is wrong-headed.

As an initial matter, I have believed for years that 1) Guantanamo should be shut down, 2) that U.S. prisons are adequate to hold Gitmo detainees, and 3) that the federal criminal justice system provides all the tools necessary for effective and fair terrorism prosecution and for detention within well-developed, constitutional boundaries.  I was thrilled that President Obama promised to shutter Guantanamo within a year, comply with the Geneva conventions and halt military commissions.

But national security courts are "Gitmo at Disney"--simply the legalization of the Bush administration's policy of preventive indefinite detention and kangaroo trials lacking full constitutional safeguards.  What are "longterm holding cells"?  They have sofas and cable?  One cell block will hold convicted rapists and murders who had the full due process rights of criminal defendants, and another cell block will hold the 12-year-old who was accused (but never convicted) of throwing a grenade?  

The proposed national security court(s) would oversee detainees whom the government claims cannot be released, sent to another country, or prosecuted in regular federal courts--elevating terrorism to a special class. Without ever being required to prove its case, the government will use these courts to short-circuit constitutional guarantees and permanently detain individuals it deems "dangerous."

Do people realize that the government can prosecute citizens and non-citizens in federal civilian courts under far-reaching laws that criminalize support for terrorism, wherever, whenever, and however it happened? They fear the trials will disclose important intelligence information?  There are procedures in place for that: sealed court proceedings, in camera submissions, etc.

I know, I know: national security court proponents claim the government needs a new "tool" for those it "knows" are terrorists, but whose prosecutions have been tainted by government misconduct (read: torture and denial of any semblance of due process).  But that's another problem.  Terrorism suspects we too badly mistreated to try.

Originally posted to Jesselyn Radack on Mon Aug 03, 2009 at 05:50 AM PDT.

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Comment Preferences

  •  Tip Jar (14+ / 0-)

    The Canary in the Coalmine is available for purchase at

    by Jesselyn Radack on Mon Aug 03, 2009 at 05:50:32 AM PDT

    •  This being such a serious and important topic (1+ / 0-)
      Recommended by:

      I will restrain myself from making an Epcot joke about the phrase "Gitmo at Disney".

      Private insurance companies only profit from denying health care, killing 20,000 Americans a year. A real public option ENDS the rationing of health care.

      by ShadowSD on Mon Aug 03, 2009 at 06:39:00 AM PDT

      [ Parent ]

  •  I guess my bottom line is that... (0+ / 0-)

    ...we have a handful of people who committed serious crimes in the past and have said forthrightly that they would do so in the future, but because we've tortured them the conventional case against them has been shot to hell.  For them, indefinite detention is the best option...well, not for them personally, but I don't care what they think :)  As for military commissions, I agree with you that they're unnecessary (except in the cases I've referenced above, but commissions wouldn't work for those except with such relaxed rules of evidence that they would be totally illegitimate), but I don't know that there's a constitutional or moral problem making them the court of first instance, if someone had the right of appeal into the civilian courts.

    Al que no le guste el caldo, le dan dos tazas.

    by Rich in PA on Mon Aug 03, 2009 at 06:02:52 AM PDT

    •  My bottom line: (13+ / 0-)

      First, the new administration should question the extent to which the prior administration knew all it claimed to know. A core part of our adversarial system of determining truth through full due process is putting the government to its proof. Our experience over the last eight years counsels against deferring to claims by the President or the intelligence agencies that they have "solid" information that justifies preventive detention.

      Second, the proper response to concerns about how to handle these difficult cases ought to be for the government either to develop admissible evidence or to send the detainees to the countries where they were seized or where they may be given due process. We should not detain anyone indefinitely without providing him a full and fair opportunity to defend himself. Already more than 500 of the men held at Guantanamo Bay have been determined not to be enemy combatants and were released to other countries. In the few pending Guantanamo cases that have gone to habeas corpus hearings, the courts have ordered nearly two dozen people released.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Mon Aug 03, 2009 at 06:07:13 AM PDT

      [ Parent ]

    •  Well, we could tweak whatever laws permit (1+ / 0-)
      Recommended by:

      the holding of people too crazy to stand trial.  Which, I guess, is the problem with some of those tortured to within an inch of their lives.  They're a real problem.

      On the other hand, confessions, whether freely given or coerced, should not be relied on.  We have no evidence that statements under oath are any more truthful than any others, especially in a culture that considers prevarication to be free speech.

      How do you tell a predator from a protector? The predator will eat you sooner rather than later.

      by hannah on Mon Aug 03, 2009 at 06:39:27 AM PDT

      [ Parent ]

    •  Mistaken (1+ / 0-)
      Recommended by:

      they are suspected of having committed a serious crime.  If we knew that they committed a crime, and could prove it without these false confessions, then we would have put them on trial.  

      Indefinite detention flies in the face of our criminal justice system.  When convicted of a crime, the convict knows his punishment.  In this case, not only do they not know their crime, they have no idea how long they will be incarcerated.

      By the way, fighting against the US in Afghanistan and Iraq isn't illegal.  It's governed under the rules of war (which we broke in invaded Iraq).  We could hold them as POWs and release them when hostilities have ended.

  •  Well at least we have Habeus Corpus restored (2+ / 0-)
    Recommended by:
    conchita, lyvwyr101


    There has been so little movement on reining in the systematic abuse of executive power that you start to wonder if anyone cares.  I try to be hopeful but am just a completely cynical pessimist for the most part.  That part tells me our great nation is toast.  It's all over but the 2 or 3 decades of crying sure to follow.

  •  That is scary (1+ / 0-)
    Recommended by:

    Indefinite detention?  Just call it what it is: an arbitrary life sentence, with a slim possibility for parole without being convicted of an actual crime.

    This will end up housing Americans who have not committed crimes in the US, but are suspected of "contributing to terrorism."  And these Americans will not have due process, and will not know the charges against them because of "national security."  

    The majority of the population won't care about this abuse, because the media will end up portraying them as terrorists, and not as American citizens.

  •  You bet it will! (0+ / 0-)

    "Without ever being required to prove its case, the government will use these courts to short-circuit constitutional guarantees and permanently detain individuals it deems "dangerous."

    And-lately-sadly-almost for nostalgia's sake-what Constitution?

    "The all-white American Media-where the REAL questions of guilt or innocence are decided."

    by lyvwyr101 on Mon Aug 03, 2009 at 01:13:47 PM PDT

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