Editore"s Note
Tilting at Windmills

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January 13, 2009
By: Hilzoy

Closing Guantanamo: Part 2

From the AP story on closing Guantanamo:

"What remains the thorniest issue for Obama, the advisers said, is what to do with the rest of the prisoners -- including at least 15 so-called "high value detainees" considered among the most dangerous there.

Detainees held on U.S. soil would have certain legal rights that they were not entitled to while imprisoned in Cuba. It's also not clear if they would face trial through the current military tribunal system, or in federal civilian courts, or though a to-be-developed legal system that would mark a hybrid of the two."

I think that designing a new "hybrid" legal system would be a big, big mistake. Some of the reasons are practical. For instance, the system of military commissions has been litigated for years, which is one reason why so few people have been tried under it. Any new system would be challenged in court as well. If we try detainees under an existing system of law, we can be pretty sure that most of the constitutional questions it raises have been worked out. If we build a new system, we can be equally sure that we'd have to wade through years of legal challenges before anyone actually got to be tried under it.

We have already held people without trial for seven years. Their children have grown up without them. We need to bring them to trial quickly or let them go. The delays inherent in constructing a whole new system of justice would, under the circumstances, be unconscionable.

More importantly: the time to construct a new system is when events reveal the need for one. That is not the case here. We have not suddenly discovered that there is some gap in our existing system of justice that only a new, alternative system will fill. Rather, there are people we want to detain and might not be able to detain under the existing system, in large part because those clever people in the Bush administration decided to torture them. Jameel Jaffer and Ben Wizner in Salon (h/t Glenn Greenwald), discussing an argument by Benjamin Wittes:

"Wittes is more candid than many other advocates of expanded detention authority in explicitly revealing a major source of his concern: that the evidence necessary to obtain convictions against some terrorism suspects is "tainted by coercion" and thus inadmissible in U.S. federal courts. In congressional testimony and in a recent Washington Post article, Wittes pointed to Mohamed Al Qahtani, a Guantánamo detainee, as the paradigmatic profile of an individual whose legitimate prosecution may be fatally compromised by coercive treatment, but whose release would pose too great a menace to Americans. (...)

Assuming, as Wittes does, that there is no evidence of Qahtani's involvement in criminal conduct that is untainted by the government's criminal conduct toward him -- something that is by no means clear -- his case squarely presents the question whether we are prepared to change our laws in order to avoid the consequences of the Bush administration's criminal embrace of torture. Wittes' argument can be summarized succinctly as follows: 1) We brutally tortured Qahtani; 2) thus, our evidence of his criminality is "tainted," rendering his prosecution impracticable; 3) therefore, we must amend our laws to allow for Qahtani's indefinite detention without charge or trial."

This is a terrible reason to create an alternative legal system. A legal system is not a one-off thing. It goes on existing after the particular cases that prompted its creation have been settled. This proposed legal system would be created to allow the prosecution and conviction of people based on evidence gained through torture. There are at least two huge problems with doing this:

(1) Evidence gained through torture is unreliable. That's one reason we don't rely on it to begin with. If there is not enough evidence to convict someone once we eliminate evidence gained through torture, then there is not enough good evidence to convict him, period.

(2) One of the ways in which we protect ourselves from torture is by making it clear that evidence gained through torture is inadmissible in court. Creating an alternative legal system in which such evidence was admissible would create horrible incentives for law enforcement. This is particularly true since many terrorism statutes are broadly written. Consider this case:

"For the past three years, a 24-year-old construction worker named Edgar Morales has been in jail, awaiting trial on murder and terrorism charges that could send him to prison for life. Mr. Morales, however, does not belong to Al Qaeda or Hamas.

Instead, prosecutors say, he is a member of the St. James Boys, a group of recreational soccer players who formed a street gang that terrorized the Mexican and Mexican-American population of the west Bronx for several years and killed a 10-year-old girl in 2002. (...)

The Bronx district attorney, Robert T. Johnson, says the law is an apt tool in his effort to prosecute violent street gangs.

"The obvious need of this statute is to protect society against acts of political terror," Mr. Johnson said in a statement. "However, the terror perpetrated by gangs, which all too often occurs on the streets of New York, also fits squarely within the scope of this statute.""

This case concerns a state statute, but the relevant part of it -- defining terrorism as acts that violate the law and are intended to "intimidate or coerce a civilian population" -- is also found in federal law. This means that a lot could count as terrorism in the hands of a creative prosecutor, and if, in all such cases, an alternate legal system was available in which evidence gained through torture was admissible, that would have huge implications.

This point applies more broadly. Whatever form a novel legal system takes, if it is designed to deal with Guantanamo detainees, it will almost certainly be designed to make it easier to convict people. Before constructing such a system, we need to ask ourselves whether we want prosecutors to have, in a range of cases that is certainly broader than what we normally think of as terrorism, the option of using an alternate system designed to make it easier to convict, and to do so when the government has not been playing by what used to be the rules.

I think it's a terrible idea. We have an accepted way of dealing with people whom we do not have enough untainted evidence to convict: we release them. Some of the people we release are guilty, and some are very dangerous: mafia bosses, murderers, rapists, people who beat up their spouses or molest their children. We have always thought that maintaining our commitment to the rule of law meant that despite these dangers, we should not lock people up if we don't have evidence against them that's admissible in court. That's what decent societies do.

It would be a tragedy if we abandoned that commitment.

Hilzoy 1:36 AM Permalink | Trackbacks | Comments (22)

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Comments

There may, unfortunately, be an alternative which you obviously have too much inherent decency to mention:

In several of these cases, (particularly Qahtani) our torture has been so thorough and unremitting as to render its victims insane, and hence unable to cooperate in their own defense.

The accepted remedy: Institutionalization pending recovery.

Problem solved...permanently.

Posted by: jollyroger on January 13, 2009 at 2:50 AM | PERMALINK

If an individual is detained via Bush administration torture (detained via torture equating an "a = c" scenario), and our legal system mandates that individual's release due to Bush administration torture (release due to torture equating a "b = c" scenario), them might not one easily develop the argument that the actionable intent of the Bush administration has been to place Americans---specifically, non-combatant civilians---in harm's way?

Pass me that copy of the Geneva Conventions, please. I think there's a possible case to be made for a government subjecting a civilian population (in this case, its own) to the vagaries and hazards of aggressive war....

Posted by: Steve W. on January 13, 2009 at 5:34 AM | PERMALINK

Instead of "closing Guantanamo," couldn't we eliminate the distinction between the rights granted to prisoners held in the US and those held on territory it by any reasonable measure is US territory?

Posted by: jhm on January 13, 2009 at 7:47 AM | PERMALINK
I think it's a terrible idea. We have an accepted way of dealing with people whom we do not have enough untainted evidence to convict: we release them. Some of the people we release are guilty, and some are very dangerous: mafia bosses, murderers, rapists, people who beat up their spouses or molest their children.

My God you are comparing a mafia boss to a terrorist who may be planning biological or nuclear attack on thousands of Americans?

No wonder why Americans do not trust the us to keep them safe. Unbelievable that you could be so blase about this.

Posted by: Kit on January 13, 2009 at 9:23 AM | PERMALINK

What about the option of the Interantional Criminal Court in The Hague?

Step 1. Recognise the ICC

Step 2. Bring actionable charges against the relevant detainees

Step 3. In recognition of the faults of Bush era handling, place the prosecution and defence in the hands of the ICC

The US would have to then hand over all documentation, identifying its sources and how it was obtained, and perhaps suffer the consequences, but it will at least provide a transparent and internationally recognised trial.

Although it begs the question: is it better for the US to clean up Bush's mess or to get the UN/ICC to do so?

Posted by: brettc on January 13, 2009 at 9:40 AM | PERMALINK

OK: the question's not begged, it's raised. (It's late in oz)

Posted by: brettc on January 13, 2009 at 9:44 AM | PERMALINK

"No wonder why Americans do not trust the us to keep them safe. Unbelievable that you could be so blase about this."

What happened on 9/11 that caused American's balls to fall off? Groups using terrorist tactics (to use the correct terminology) are actually considerably less dangerous to me as an American than activities like, oh, driving to work.

There are a few low probability scenarios (like acquisition and delivery of a nuclear weapon) that might change that. Torture and extra-legal activities by the US government, by helping groups like Al Queda recruit new blood, actually increase that danger. Good intelligence, police work, intelligent and even handed diplomacy, and a strict and transparent legal system reduce the danger.


Now, are there things that could change that? Of course -

Posted by: Butch on January 13, 2009 at 9:53 AM | PERMALINK

Oops - last sentence was a dangler...

Posted by: Butch on January 13, 2009 at 9:55 AM | PERMALINK

@ Kit,

What made this country great was the fact that sometimes its citizens had to find the COURAGE to forego their personal security and stand for a larger principle such as the rule of law. To say you abhor torture yet assign no consequences for its use makes you no better than the person who authorized it in the first place.

Yes, releasing these people MAY place the country in jeopardy (although 99% of them have no realistic means of doing so), but that is the consequence of using torture to achieve your aims and a cost that must be borne in order to restore this country's credibility. This country's system of law means nothing if it's not applied on a consistent basis to everyone, even those we detest.

It's time for Americans to stop sniveling and make some real sacrifices to restore this country's greatness.

Posted by: bdop4 on January 13, 2009 at 10:06 AM | PERMALINK

You still don't get it.

It's lawful to hold combatants for the duration of hostilities without regard for whether or not they've committed a crime under US law. That is black letter law. The fact that some of the evidence of criminal conduct may be tainted has nothing to do with this. All that means is that they can't be punished for those crimes. It doesn't mean that they can't be held until the jihad ends.

There were some complaints early on that various innocent shepards and tourists had been swept up in Afghanistan and held in Gitmo. I think even Obama has conceded that those folks, if there ever were any, have been released. What's left are combatants. I am not aware of any principle of law that requires the United States in the middle of a war to release combatants to return to the battlefield. Apparently, this simple truth has finally begun to penetrate Obama's consciousness, which is why he is backing and filling on when he's going to close Gitmo and what he's going to do with the combatants held there.

Posted by: DBL on January 13, 2009 at 10:23 AM | PERMALINK

I think even Obama has conceded that those folks, if there ever were any, have been released.

You are highly misinformed.

Do some research.

It's not hard to find.

Posted by: gwangung on January 13, 2009 at 10:31 AM | PERMALINK

gwangung - Maybe you missed it, but I heard the President-elect the other day talking about what a problem it is figuring out what to do with the highly dangerous folks held at Gitmo. I believe he doesn't use the word "combatant" because that would piss off his followers a bit too much, but the principle is the same.

Posted by: DBL on January 13, 2009 at 10:52 AM | PERMALINK

DBL: Click the links about the Uighurs in the post above. The Bush administration has conceded that they were not, and are not, enemy combatants. They are still in Guantanamo.

This is not conjecture. It's about specific individuals.

Posted by: hilzoy on January 13, 2009 at 11:16 AM | PERMALINK

DBL - right off the bat the Uigurs come to mind. They may be dangerous in the eyes of China - to the US, not so much. And every claim by the Bush Administration that someone is dangerous should be regarded as a lie without full and independent confirmation. For those who can actually remember the past, every single one of the Guantanamo prisoners was supposed to be "the worst of the worst". Until many of them were quietly released...

Posted by: Butch on January 13, 2009 at 11:20 AM | PERMALINK

DBL---

You certainly missed it.

DO. YOUR. RESEARCH.

Stop being so lazy.

This isn't a matter for debate or partisan sniping. These are the facts, and you can't be treated seriously until you know the facts. Right now, you're being willfully ignorant.

Posted by: gwangung on January 13, 2009 at 11:35 AM | PERMALINK

Instead of "closing Guantanamo," couldn't we eliminate the distinction between the rights granted to prisoners held in the US and those held on territory it by any reasonable measure is US territory?

Legally, there is no such distinction. It is only the Bush regime which has been pretending to such a false distinction in order to evade the law.

Posted by: Stefan on January 13, 2009 at 11:57 AM | PERMALINK

It's lawful to hold combatants for the duration of hostilities without regard for whether or not they've committed a crime under US law. That is black letter law. The fact that some of the evidence of criminal conduct may be tainted has nothing to do with this. All that means is that they can't be punished for those crimes.

So DBL admits that these men are combatants, and, therefore, subject to the full range of Geneva Convention protections? Well, OK, if he says so.

Posted by: Stefan on January 13, 2009 at 12:01 PM | PERMALINK
I think that designing a new "hybrid" legal system would be a big, big mistake.

Especially given that there is an existing legal system that is between the regular civilian court system and an ad hoc military tribunal system: a system that, like the regular civilian court system, is a regular, established system, bound by well-established law, procedure, and jurisdictional boundaries (that extend to both the persons and subject matter at issues with detainees), and that, like a military tribunal system, is specialized in handling matters of military discipline, the laws of war, and matters where national security may be implicated; its called the court-martial system.

Posted by: cmdicely on January 13, 2009 at 12:45 PM | PERMALINK

I should not even bother, but fool that I am, I'm going to: the liberal blogosphere seems to conveniently forget the barbaric incidents like the Nicholas Berg beheading in the mist of all this moral handwringing over stark fundamentalists, some of whom probably wouldn't hesitate to slay me in an honor killing on the mere suspicion that I had sex with an outdoor merchant a few blocks down. Yes, Bush cronyism hurt good governance, but what would Steve and Hilzoy and Kevin, and maybe even Michelle Cottle, actually do in the face of provincial sharia hard-liners? I wonder. I dearly wish our bullies, like Cheney and Rummy, had been smarter and better bullies than they were, and I do not think water-boarding, or the extra-legality gymnastics, was necessarily the right answer to the fanaticism of the *enemy*, but I think backing up a little, looking at what we faced, and may still face, is worth a pause.

Clinton tried to treat such combatants as criminal defendants. We all remember how that turned out--and this is what I meant the other day in repeating that civil liberty is not a suicide pact. Sure, we do not want our right-wingers becoming the beheaders, but I think this exhaustive drum beating is lopsided, to say the least. By all means, close Gitmo, but I think being appalled by the continued detention of the detained is a convenient horse to whip, as opposed to maybe telling the Islamicists that their moral code could use a 21st century upgrade.

Posted by: notahilzoyfan on January 13, 2009 at 2:51 PM | PERMALINK

Clinton tried to treat such combatants as criminal defendants. We all remember how that turned out--

I'm not sure we all remember the same way. In my memory (which seems to be backed up by, oh, all contemporaneous news sources), the 1993 WTC attack and the aborted 1999 Millenium bombing plot terrorists were caught, tried, and convicted, and they sit in jail to this day.

Posted by: Stefan on January 13, 2009 at 3:51 PM | PERMALINK

Oh, by the way, compare how the Clinton approach of treating terrorists as common criminals worked out (terrorists tried, captured, convicted and imprisoned) versus how the Bush approach of glorifying terrorists as war fighters worked out (Osama bin Laden alive and free to this day).

Posted by: Stefan on January 13, 2009 at 6:41 PM | PERMALINK

Can we just give Guantanamo back to Cuba,,, with the prisoners?

Posted by: olo on January 13, 2009 at 8:39 PM | PERMALINK




 

 

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