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On first blush, it seems like Charlie Savage’s New York Times piece about Guantanamo staying open until at least 2011 (an estimate, but a sensible one) is, you know, Bad News. But.
Consider how this is going to work. The reason why GTMO might stay open through 2011, Charlie reports, is because Congress is balking on the money to buy the Thomson Correctional Center in Illinois, where Obama wants to move some of the GTMO detainees. But which detainees? The ones who will be tried in military commissions, which will be moved to Thomson under the plan. Detainees who will be tried in civilian federal courts will be detained by the jurisdiction charging them. And it’s the jurisdiction’s responsibility to imprison them after conviction.
You see where I’m going with this, right? Only the military commissions are hitting a snag right now. David Kris and Jeh Johnson, the senior Justice and Pentagon officials responsible for the contours of the Obama administration’s detainee policies, haven’t provided a clear set of criteria for who gets charged in civilian courts and who gets charged in the commissions. And they’ve had, at this point, a year to review the Guantanamo cases! Johnson told a Senate panel in July, “Where feasible, we would seek to prosecute detainees in [federal civilian] courts.”
Well, that just got a whole lot more feasible with the Thomson Snag, didn’t it? The federal government’s difficulties in purchasing Thomson are only problematic if you’re a fan of the military commissions. If you prefer trying detainees in federal courts or sending them to the custody of their home countries, then this isn’t problematic at all. And my colleague Daphne Eviatar documented just yesterday all the persistent and structural problems with the military commissions.
Bottom line: this is an opportunity for civil libertarians to relitigate their case with the administration that tinkering around the edges of a baroque and neither-fish-nor-fowl justice system is a mistake, and one that carries needless and substantial political risk for the administration. New York didn’t flinch from charging Ahmed Khalfan Ghailani or Khalid Shaikh Mohammed. Because New Yorkers have balls and we want justice and we want to convict the living fuck out of those murderers. (No disrespect to Illinois, whose governor and Senators embraced Thomson, incurring political risk themselves.) Who knows? The Obama administration might actually be persuaded. The further the Obama team goes down this road, the more congressional opposition they’re going to get; whereas using the existing justice system is an executive prerogative. (Though it’s obviously not risk-free. There does need to be some political courage here.)
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My goodness, you’re optimistic this morning, Spencer.
If it happens, it’ll be an entirely unintended collateral effect. Obamco people are no more competent than Bushco people and every bit as venal.
There has never been a rush to secure ones liberties. There is always a rush to deny them. Patriot Act anyone…
Thanks for this, Spencer. I also wrote on Savage’s article today. I think we are on a very similar wavelength here.
Instead of going to Federal Court don’t you think these detainees will continue to languish? Don’t get me wrong, I would like to see each and every one of them tried in our justice system. But I have a hard time seeing military commission/indefinite detention fans just shrugging and giving up the fight to deny justice here.
I hope you are right. Personally, I am entirely uninterested in ending the symbolism of GTMO and leaving the reality (and obviously, its not going to fool anyone outside of the US.)
Hopefully, the administration can also be convinced that doing the right thing here without making a strong case for doing the right thing is bad politics. The Obama campaign had some success talking a good game on security issues – that security and rights were not incompatible.
Showing (or appearing to show) that you have principles and that you will stand up for them is good politics. The Democrats continued vulnerability turns largely on looking like they do not stand for anything, not on what they stand for.
People underestimate the legal minefield put down by CheneyBushCo having violated both the Torture Convention signed by Reagan and the Geneva Convention when they decided it would be OK to start torturing the fuck out of detainees. If they start trying all these tortured people in regular courts, their cases will be thrown out and a bunch, not all, of jihadists that are intent on killing as many Americans as possible will be back in Afghan/Pakistan plotting to kill more of us.
Yeah it sucks, but do you really want this admin to start releasing some of these people that are clearly going to return to killing Americans because the last admin decided to violate international laws?
If they deem them POW’s then they’ve broken the Geneva Convention. If they are deemed federal criminals than most evidence obtained after torture is thrown out.
It’s a frickin’ mess.
If Savage’s reporting is correct, Obama will save US tax payers the cost of a limited use and expensive prison, even though that never mattered to him, I dare say, and use Bushco’s Kafkaesque system of justice, hidden behind the barbed wire of Gitmo. Fun, profit and justice in an Oligarchy. All hail Obama.
Yes, we do. Aside from the fact that we have no justification for violating international laws, US statutes or the Constitution, failing to do so will increase the number of people who are committed to killing Americans. Closing GTMO (for real) would decrease the likelihood that new terrorists would be recruited, and would make it more difficult to maintain the support of existing ones.
Also, there is no warrant for suggesting that people released will go back to killing Americans. This is true even if they have done the things they are accused of. They might, or might not (or perhaps some will, some will not.)
Regardless, presumably the reason they cannot be prosecuted is because there is no evidence not generated through torture, which is worthless.
I came here via Jim White’s link to your piece, though I sometimes end up here on my own, even though I don’t often comment.
Your two pieces seem to complement one another, helping people like me to connect the dots a bit better.
Thanks!
I think there are serious civil liberties concerns (see AWorthington) *because* the prisoners who will be sent to Thompson may be tried by military commissions. Disclosure: I am not a fan of military commissions. I have browsed the sickening FOIA documents and these are mickey mouse kangaroo court/Spanish Inquisition proceedings. So far it seems, the only reason for this new facility is to ensure “evidence” gained through torture is admissible, and to “appease us progressives.” Except some of us progressives don’t like shiny f*cking objects designed to fool us. For all we know, Pres. Obama is opening up GITMO II. Except it may be harder for the administration to get away with the sickening abuse that was perpetrated in Gitmo in U.S. proper.
Also I have not been able to read up much on this yet, but has the administration said what it will do with the many prisoners who have been kidnapped as juvies from madrassas, Uighurs, etc. and other egregious cases where all signs say “not guilty* These men have been languishing in prison for how many years? Because of what? Youth and health are deteriorating. What jurisdiction does an innocent man belong too?
So, where is the petition we can sign? Maybe Obama is sick enough of the Senate to use a legal executive power.
What bothers me is that the fright-wing nutters are convinced that the detainees are all guilty. What happened to the hallowed principle of American Justice of “innocent until proven guilty”?
Another thing that bothers me is DOJ signals that some of the detainees will never be released even if their trial ends in a “not guilty” verdict, and apparently even if there is nothing left to charge them with.
The stench emanating from the DOJ has not ceased, and grows worse. But even worse than that, most of the country seems not to care. Our country has been cut adrift from its moorings.
Bob in AZ