Closing Gitmo – Symbolism Without a Plan

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The Senate was quite right in denying President Obama $80M to close the Guantanamo detention facility. The President did not present a plan. The Congress and the country are about up to HERE with appropriating funds for projects without plans. What’s the plan for those currently held at Gitmo?

Gitmo detainees can be divided among 3 categories:

Category 1- Those for which there is sufficient evidence for a prosecution.

Category 2- Those for which there is not sufficient evidence for a successful prosecution yet are deemed too dangerous to be released.

Category 3- Those who are not threats to US security and have not committed prosecutable offenses.

Detainees in the last category should be released and returned to their home countries. A bit of startup money as partial compensation for their unjust imprisonment by the US would be the right thing to do. And don’t anyone get all indignant here. Were you or a loved one held with no charges in a foreign prison for a period of years I think you’d be entitled to compensation for the inconvenience beyond a “sorry” and airfare home.

Category 1 detainees present two issues.

1. Upon conviction, their imprisonment in the United States raises several sub-issues such as the ability of our prisons to hold them without escaping; which facilities and states will be holding them; those sentenced to relatively short sentences being released into the American populace. From what I have seen on the news, there isn’t much doubt that federal max security prisons are physically and technologically capable of holding dangerous prisoners without any chance of escape. The second part of this issue is the “not in my backyard” argument raised by locating toxic waste dumps and other not very pleasant and potentially dangerous facilities in the states. I’m thinking that with economic incentives there will be states eager enough to cash in on convicted high-max terrorists. The final sub-issue of a short prison sentence is more troubling, following along the same lines as the discussion below in number 2.

2. Far more troubling is such a detainee being acquitted at trial. Once subject to federal jurisdiction will the accused be entitled to the same rights enjoyed by other federal defendants? Procedural mistakes such as coerced confessions and warrantless searches may well have been SOP when held at Gitmo. What consideration should be given to SOP vs. constitutional rights? Should a defense attorney be able to get his detainee client acquitted due to a procedural error violating his constitutional rights thus compelling an acquittal? An otherwise guilty terrorist being acquitted due to a technicality will not play well and may present a security threat. Must a new set of rules be drafted to avoid such acquittals?

Acquittals would also be on the merits of the case, i.e., the prosecution failed to prove the case beyond a reasonable doubt as determined by a jury or judge. Are we to lower the standard of proof in federal criminal cases for detainees? I doubt that will fly as setting nasty precedent. So under the existing rules of law in federal courts, an accused terrorist putting a reasonable doubt in the mind of a judge or one juror is now free to go. What then?

Ah – but the fears evoked by these scenarios are of mass murder, fueled by images of 9/11 where a small group of terrorists killed thousands. Is the average acquitted terrorist significantly worse than the average acquitted murderer or rapist also released into American society? Someone will have to come up with a best guess answer before any Gitmo detainees are processed through the federal system with the possibility of acquittal and release.

Category 2 detainees, however, are the most problematic for the American justice system, its values, the Constitution and the left wing. Under the American justice system, these detainees could not be held indefinitely without cause to believe that they committed crimes punishable under American law. A law student could have these folks out of custody in a second. On the other end of the scale are the FBI and spy agencies with accurate intelligence indicating that these people are clear and present dangers to the security of the United States. Let’s pretend for a second that Osama Bin-Laden was captured 20 years ago – before he had directed major terrorist attacks. No criminal acts or evidence, but our intelligence agencies know he’s huge trouble for the country’s security. What do you do with him?

The only historical precedent for detaining persons based on suspicion of potential harm to the United States occurred during World War II. The imprisonment of more than 100,000 Japanese nationals and American citizens of Japanese descent in detention camps, upheld by the United States Supreme Court in Korematsu v. United States, was a tragic, obscene chapter in the history of American justice.

President Obama intimated if not proposed that a new set of rules is needed to deal with such detainees – a new code of justice of some sort. The Uniform Military Code of Justice is patterned on federal rules, but differs in ways suited to trying members of our military. There are military tribunals with their sets of rules. Each offers progressively less protection of the rights of the accused. President Obama is proposing yet another set of rules to allow the federal government to hold suspected terrorists indefinitely, necessarily tossing out the fundamental right to bring a writ of habeas corpus.

Aside from Bush-Cheney’s periodic de facto suspensions of the writ, habeas corpus (literally “produce the body” the right to challenge one’s detainment) was last suspended by Abraham Lincoln during the Civil War.

Indefinite detainment based on suspicion of potential danger to the United States serves Taliban and Al Qaeda recruiters almost as well as torture.

Is Civil War a working standard precedent for suspending habeas corpus? If so, is the security of the United States threatened by these detainees to the level of the modern day equivalent of the Civil War? I’d like to hear that from our top intelligence officials as well as President Obama himself. If not, just what is the standard these days for abrogating such a fundamental right? What sort of code, Mr. President? What sort of code geared for detainees held indefinitely would pass constitutional muster?

Maybe we should just accept Italy’s President Silvio Berlusconi’s gracious invitation to take our Gitmo detainees to Italy and be done with it.

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