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Admin Floats Gitmo Fix
The clock is ticking down for Guantanamo Bay. Last week, the Supreme Court agreed to hear a case challenging the constitutionality of the 2006 Military Commissions Act, the legislation passed to bless the Bush administration's military tribunals for enemy combatants charged with war crimes. The act itself was a fallback: the GOP Congress passed it only after the Court struck down the tribunals in Hamdan v. Rumsfeld, leaving Bush with no claims to the lawfulness of his preferred remedy for trying al-Qaeda detainees.
Now, facing the prospect of the Court again striking down the tribunals, the administration is looking to preempt the legal challenges to Guantanamo. A faction led by National Security Adviser Steve Hadley and Defense Secretary Bob Gates is exploring a legislative remedy to close the facility and, perhaps, create a new legal framework for trying its inmates:
Essentially, the administration would propose legislation that would result in dividing the estimated 375 Guantánamo detainees into three legal categories. The one that would call for legislative action would include detainees like Khalid Shaikh Mohammed, the mastermind of the September 2001 attacks, and others whose trials would risk exposing intelligence operations. This group, estimated at two dozen to 50, would be placed indefinitely in military brigs on American soil.A second group would also be moved to the United States, most likely to face trial in military courts, but perhaps with more legal guarantees than in the current military tribunal system.
The third, and largest, group would consist of detainees to be released to their home countries.
Strange as it sounds, such a fix would mean the administration is, at different turns, expanding and abandoning its long-held stance that enemy combatants aren't entitled to due process.
According to the New York Times, the legislation is in its embryonic stages. But if the second category becomes law as described, it potentially represents a reaffirmation of the military trials created by the Uniform Code of Military Justice, whereby defendants cannot be convicted on the basis of hearsay evidence or information obtained by coercive methods. It has long been the contention of military officers opposed to the tribunals, such as Lt. Commander Charles Swift, one of the attorneys in the Hamdan case, that the UCMJ trials strike an appropriate balance between internationally-recognized due process rights and national security.
More problematic is the first category, whereby the most dangerous detainees would forever be housed in military facilities. Again, the proposal is preliminary, but here a category of detainees would receive less due process than they currently do under the military commissions. Court challenges would probably be inevitable, and given the trajectory of the Supreme Court's rulings over the last three years -- all in favor of more process rights than the administration desires -- the category would probably be rather short-lived. The Times describes opposition to the entire revamped framework for enemy combatants as coming from Vice President Dick Cheney and Attorney General Alberto Gonzales, so it's possible that the first category is a way to draw them on board with the assurance that the proposal won't withstand judicial scrutiny.
Whether Congress would bless the administration's three-tiered proposal as the Times describes it is uncertain. But the first step is for Gates, Hadley and their allies to persuade Bush and Cheney that they have a workable plan to shut Guantanamo Bay down. And that probably requires enlisting Congressional Democratic support, difficult as it is to get Patrick Leahy to hold hands with Dick Cheney.
Comments (17)
Michael wrote on July 3, 2007 10:42 AM:I find this utterly amazing. We have heard for 5 years now how awful and terrible and threatening these "terrorists" are that are being held a Gitmo. They can't be on the streets, they will kill us all. For 5 years, no trials, nothing.
Now, five years later, they want to release the vast majority of the people being held? Unbelievable. Where is the justice? No wonder the world hates us. This is an outrage. There is no reason why the people being held should not be released immediately and the rest shipped to the US and held in military custody pending trial, NOW. If the government can't get its act together for a trial after 5 years, we really have major problems.
Azdak wrote on July 3, 2007 11:01 AM:I don't know all the details about the Gitmo detainees (and, thanks to bushco, probably no one else does either), but this is just another attempt by this regime to whitewash their crimes and incompetence and, once again, escape being held accountable for their actions.
The reason we are in this predicament--i.e. we cannot obtain a conviction in any reputable legal venue--is because of the actions of bush, cheney, rummy, abu g, yoo, et al.
At the barest minimum, any action by Congress to cooperate with this plan should require full and public disclosure of all the the facts and evidence pertaining to these detainees and their treatment. Anything less should be a non-starter. Preferably, Congress would insist that everyone involved with setting up gitmo resign and face the legal consequences of their actions.
There is little, if any, "national security" involved anymore--we've had some of these guys for 6 years. This is a pure CYA strategy.
Why should Congress help bail these guys out?
exdem wrote on July 3, 2007 11:13 AM:I guess we now know what all those newly hired lawyers were for: figuring out how to split hairs (Libby, Gitmo....)
exdem wrote on July 3, 2007 11:16 AM:I guess we know what all those newly hired lawyers are doing: splitting hairs to clean up a few spills (Libby, Gitmo....)
wgard wrote on July 3, 2007 11:30 AM:How can this be, there there would be any without (secret) trials who could be released? After all, have we not been assured by no less than the VP and crew that these are the 'worst of the worst'? No one denies that Khalid Shaikh Mohammed is dangerous, even evil. But surely, those camel jockeys, drivers, cooks, children under the age of consent, etc., can be no less evil! (Snark, of course.)
SP wrote on July 3, 2007 11:46 AM:The problem with having ANY category where the prisoners have no rights is that the government can still throw anyone they want into that category solely on their say-so. As others noted, the ~400 Gitmo guests have been called the "worst of the worst," too dangerous to try. Now we're supposed to believe that 25-50 of these are Super Double Secret Worst of the Worst, so they don't deserve trials, and oops, we just messed up with the other 350? How long until there are 400 SDSWotW, and that classification is declared unconstitutional, and we subdivide those into Really We Definitely Mean It This Time Super Double Secret Worst of the Worst and oops, not so bad? The existence of any category that lets the government detain a person with no trial and no recourse is a danger and is an insult to the Constitution and the history of law.
Cranky wrote on July 3, 2007 11:47 AM:What everyone is ignoring and what will probably end this whole debate is the reports of the building of prisons in Afghan. and Iraq and the shipping back aboard of all these prisoners, our of reach of SCOTUS and anyone else for that matter.
anon, too wrote on July 3, 2007 11:53 AM:That sounds like they're moving the goalposts, again, which is something the administration does frequently, and has perfected to a fine art.
Katherine wrote on July 3, 2007 12:30 PM:Don't fall for it, Spencer. Congress has no business setting up an administrative detention system w/o a full investigation into our detainee policies. There is no more guarantee now than when they opened GTMO that only the "worst of the worst" would be subject to indefinite detention (what about people who there's no evidence against but can't be sent home because they'd be tortured--which seems more likely, that the President would grant them asylum or lock them up indefinitely?) Moving them to the U.S. would guarantee habeas jurisdiction, but how the court rules on the merits is another question, and I do not want to risk everything yet again on John Paul Stevens' good health & what Anthony Kennedy ate for breakfast.
I can imagine a bill that would be acceptable but the Democrats have to be EXTREMELY careful.
acallidryas wrote on July 3, 2007 1:40 PM:Among the many things that don't make sense in the Bush administrations arguments for indefinite detention because They Say So is that there are those "whose trials would risk exposing intelligence operations."
The United States, and other nations, have put people on trial for espionage before. These trials would, be definition, have involved states secrets, confidential material, and possibly intelligence operations. And yet, we have found a way to have these trials. So clearly there's some method to try people even in cases involving sensitive material. Even if these methods wouldn't work since 9/11 changed everything, I'm sure you could get a group of lawyers together to cobble together a framework for a trial that wouldn't involve publishing all the US's intelligence operations.
So, in addition to the administration's argument being immoral and un-American, it also just doesn't make sense.
who wrote on July 3, 2007 1:45 PM:Sure, NOW there's only 25-50 people in the 1st category, but watch how that number balloons if this law is enacted.
paul lukasiak wrote on July 3, 2007 2:26 PM:what is interesting is the continued refusal to treat the detainees as prisoners of war, which would allow for indefinite detention without trial for as long as the conflict in Afghanistan continues - if not longer.
sparrow wrote on July 3, 2007 5:59 PM:This sounds like a man attempting to free his foot from the mud in the swamp while placing his other foot in it to support his weight to accomplish the task.
thedeanpeople wrote on July 4, 2007 12:57 AM:None of this would do anyting about the rotting elephant carcass in the National Living Room -- the real FINDING in the Hamdan ruling...
The YEARS of WAR CRIMES had already been committed.
This is what John Warner, John McCain, Lindsay Graham and others refused to "take ownership" of when they cleverly sidestepped the last "War Criminals Protection Act," by writing it to say torture is still illegal, but the president is going to do what he wants.
The LieberDems may well roll over and pee themselvs (again), but I doubt Warner & Co. will allow further defecation on the military with this toxic ideological waste.
While the panic is understandable, now that the "detainee's" legal status in "our system" has returned to "kidnapped hostages," digging deeper or even sideways just won't do anything but protract the ongoing torture.
Unlike Texas driving records and AWOL service records, Geneva violations are just not expungable. And anyone who pretends they are just becomes a war criminal themself.
--
Olyessia wrote on July 4, 2007 1:17 AM:SC: mine (as in don't follow Hadley and Gates into that field)
http://www.huffingtonpost.com/the-news/comments/2007/07/02/54732
they can't let them go because: trials would risk exposing intelligence operations
wtf does that mean?
gore writes about abu ghraib in his new book. so hard to read. torture. really? in america?
Well then, somebody had better detain Bush, Cheney, Yoo, Addington, Rumsfield --- the whole lot them, as the terrorists they truly are. Classify them as "unlawful enemy combatants" or "enemy combatants" --- who cares, just get them to Gitmo before the high court rules in favor of our constitutional rights to habeas corpus. Time's a wasting!
How many of those in custody were CIA assets?
sc - C R I M E
Wretched Refuse wrote on July 4, 2007 11:18 AM:What everyone is ignoring and what will probably end this whole debate is the reports of the building of prisons in Afghan. and Iraq and the shipping back aboard of all these prisoners, our of reach of SCOTUS and anyone else for that matter.
Posted by: Cranky
Sorry, cranky, any space occupied as an American base, or American embassy, or American holding are under the rule of the Constitution. THAT is the reasoning that GITMO detainees CAN go to SCOTUS to begin with. Being held by American forces OPENS the the review of that action up to SCOTUS, and mandates the holding to be be performed under Geneva conventions and our code of military conduct.
trashhauler wrote on July 5, 2007 12:30 AM:GOod try though. Moving the black box to Afghanistan does nothing as long as the Americans are running the show.
Michael wrote:
"There is no reason why the people being held should not be released immediately and the rest shipped to the US and held in military custody pending trial, NOW. If the government can't get its act together for a trial after 5 years, we really have major problems."
______________________
Yes, we do have major problems - the first being the mistaken idea that most of our detainees were captured by policemen with full field evidence laboratories. They weren't, and any expectation of fully developed chains of evidence is wishful thinking. Aside from the higher profile prisoners, most of our detainees were scooped up by regular troops in the field, either in combat or immediately afterward. In such situations, the main purpose isn't to gather evidence for an eventual trial, it is to remove a potential hazard from our troops. A post-combat after action report (AAR) will mention how many prisoners were taken. It might, or might not, mention their names or the details of why they were considered dangerous. The Guantanamo detainees are slightly different from the thousands of other detainees in Afghanistan and Iraq, but only in degree. The Gitmo detainees were either considered to be of higher intel value or did something to become considered special hard cases, such as stirring up trouble after capture. Convictability was almost certainly not a consideration in their getting sent to Gitmo.
We are definitely in a conundrum. Most of these prisoners are either lawful combatants, in which case no trials are necessary (and we coincidentally establish a precedent by which almost anyone who shoots at American troops can argue they are legal combatants), or they are not lawful combatants, but we probably lack enough evidence to convict them of their crimes in an American civil court, precisely because they were captured as a result of combat.
Such is what happens when people want to fight a war as if it were a law enforcement activity. Oh well, we can always hope that our troops manage to kill them, next time they run up against them.