AG Eric Holder, and presumably Sec. of State Clinton, have been doing the groundwork to find international friends and allies willing to take Guantanamo detainees. About 30 detainees are on the list to be repatriated, and those requests are expected to happen "Within weeks as opposed to months."
The U.S. will allow as many as seven of the Chinese Muslims, the Uighurs, to settle in the U.S. Some of these men were officially cleared for release in 2003, and can't be returned to China because they are likely to face persecution there. There are 10 other Uighurs whose fate then is in question, and of the total 240 still held in Guantanamo, about 50 have told their lawyers they can't be returned to their home countries for fear of persecution.
Then there's the 50-100 that are presenting a real dilemma and is most critical to how the Obama administration and our country reestablishes rule of law and justice.
At The Washington Independent, Daphne Evitar has an important article on the consensus forming on prosecutions of these detainees, at least some of whom may have been involved in terrorist activities, but for whom the evidence is contaminated by torture, or just muddied.
Although Holder signaled that the administration is still considering the creation of some sort of new court system to try suspected terrorists, a consensus is developing among legal experts that for the vast majority of them, the civilian federal court system — where terror suspects have traditionally been tried — is still the best way to go. A broad range of experts increasingly seem to agree that any new military commissions or "national security courts", as they’re sometimes called, even if they could be set up quickly and provided detainees more rights than did the Bush military commissions, will always be viewed as suspect and subjected to protracted challenges in federal court. And while the military justice system used to prosecute U.S. soldiers could also be used to prosecute alleged war criminals, experts say it offers few advantages over the federal court system and many practical drawbacks.
"I think it would be much better to go into a federal court system," said Gary Solis, a retired Marine and war crimes expert who teaches international and military law at Georgetown University, and spoke at a recent legal conference on the subject. "It could be done in the military, but I don’t think it should be.""I think it would be much better to go into a federal court system," said Gary Solis, a retired Marine and war crimes expert who teaches international and military law at Georgetown University, and spoke at a recent legal conference on the subject. "It could be done in the military, but I don’t think it should be." ...
Many former federal prosecutors believe that world is adequately protected by current laws and procedural rules that allow judges to look at evidence behind closed doors, and allow the government to redact names of informants or to summarize critical evidence where its release in full could endanger national security. Indeed, a study of terrorism cases since 9-11 conducted for Human Rights First by former federal prosecutors concluded that the federal court system is well equipped to handle such cases. The ACLU and a bipartisan coalition created by the Constitution Project, along with many lawyers who have represented detainees at Guantanamo Bay, have also argued consistently that specially created national-security courts are unnecessary and likely unconstitutional.
What’s more, as Judge Karas noted, "The perception of our allies in the fairness of how we prosecute these cases is essential for their cooperation." U.S. prosecutors will depend on that cooperation to obtain critical evidence, so creating a new court system "has very real practical implications."
To the extent that the current court rules don’t accommodate some of the needs of prosecuting international terrorism, those rules could be amended without creating a whole new court system, legal experts say. Some have argued that Rule 15 of the Federal Rules of Criminal Procedure, for example, could be amended to make it easier to introduce deposition testimony in federal court when witnesses aren’t available.
In addition to how to try them, there's the question of where to house them. There's still a healthy contingent of Republicans and Bush holdovers who want to keep Guantanamo open, and will fight tooth and nail any effort to bring them to the U.S. Mitch McConnell made that clear in a defense spending hearing yesterday featuring Def. Sec. Robert Gates:
Some Republicans have become increasingly vocal in complaining that the administration has yet to come up with viable alternative to the military prison at Guantanamo. "The question of where the terrorists at Guantanamo will be sent is no joking matter," Senator Mitch McConnell of Kentucky, the Senate Republican leader, said in a statement on Thursday. "The administration needs to tell the American people how it will keep the terrorists at Guantanamo out of our neighborhoods and off of the battlefield."
Good lord. Terrorists in our backyards! Spencer has the appropriate response: "it’s ludicruous to believe that a convicted terrorist is going to be able to break out of a U.S. detention facility, as proven by the successful confinement of, say, Omar Abdel Rahman or Ramzi Yousef or Timothy McVeigh. Nor have there been an appreciable increase in radicalized prison populations as the result of Rahman or Yousef’s confinement. Such concerns aren’t good arguments against denying Guantanamo detainees the rights that the Supreme Court has ruled they possess."
Those rights are of particular concern, particularly where Sec. Gates is concerned, as he dropped this little bombshell yesterday: "What do we do with the 50 to 100 — probably in that ballpark — who we cannot release and cannot try?" suggesting that the indefinite detention of these people could continue in the new administration. That's an issue that the Justice and Defense departments need to get straight on right away.
Not trying them is not an option, or shouldn't be in a country governed by the rule of law.