Monday, November 24, 2008

What Will Obama Do With Guantanamo Detainees?

Readers may remember the story of Abdullah Saleh Al-Ajmi, a one-time detainee at Guantanamo Bay, Cuba, who was released from American custody in 2005. Al-Ajmi returned to Iraq to commit a suicide bombing in Mosul in March 2008.

That's a bit of history Barack Obama must not forget as he prepares to close the American military detention center at Guantanamo.

As the Los Angeles Times reports, many of the prisoners remaining at the facility are too dangerous to be released, and their legal status leaves questions as to whether judicical convictions are possible in the current legal environment:

President-elect Barack Obama's vow to close the U.S. detention center at Guantanamo Bay, Cuba, cheered human rights organizations and civil libertarians, but could force the new administration to consider a step those groups would abhor.

Some Obama advisors predict that his administration may have to decide whether to ask Congress to pass legislation allowing a number of detainees to be held indefinitely without trial. But civil libertarians think that even a limited version of such a proposal would be as much at odds with U.S. judicial custom as the offshore prison.

The debate suggests that the decision to close Guantanamo may be the easy part for Obama. Much harder will be sorting out the legal complexities of holding, prosecuting, transferring or releasing the roughly 250 prisoners.

Obama has never embraced an indefinite detention law, and his supporters think he will take steps to avoid that outcome. However, sharp divisions have emerged among Obama allies on how to proceed. The civil libertarians, legal scholars and lawyers who were united in condemning the Bush administration's policies differ on what to do with the prisoners at Guantanamo.

All agree that a crucial first step is to thoroughly review each detainee's case to see how many could be put on trial in U.S. courts and how many could be released to their home countries.

People close to Obama's transition team say officials have been busy filling key administration posts and have not decided how to deal with the aftermath of Guantanamo. Obama has said repeatedly that he plans to close the prison.

But some experts on detention policy, including close Obama allies, are convinced that problems posed by many of the detainees are insoluble: They may be too dangerous to release but will never be able to stand trial in U.S. courts because of tainted evidence or allegations of mistreatment.

For those prisoners, closing Guantanamo could require congressional approval of a law allowing long-term detention.
The bitter irony here is exquisite.

One of the most vociferous challenges to the Bush administration has been the allegations by the hard left of violations civil liberties of non-uniformed enemy terrorists. Now we'll have an administration led by a Harvard-trained civil rights attorney, and it's already clear he's doesn't know what to do with some of the world's most violent fanatics.

Think about it: The very terrorists who for years civil libertarians have championed as deserving human rights protections may in be imprisoned for life without possibility of a trial because allegations of abuse or tained evidence - legal claims that would be afforded to any petty burgler in domestic criminal cases - would in effect set them free to again kill the innnocents.

President Bush made the right decision in the first place: Hold the terrorists indefinitely as unprivileged enemy combatants for the duration of the conflict. We have now won the Iraq war, and in a few more years we may see victory in Afghanistan, where most of the original terrorists were captured.

Perhaps by that time the U.S. and the international community wiil have devised a new legal regime to decide the fate of those who might seek to return to the battle of global terror and renew the fight against the Western democracies.

10 comments:

Philippe Ohlund said...

The detention center at Guantanamo Bay is a problem.

It gives America a very bad image abroad.

I also think it leaves some legal questionmarks unanswered.

We will have to pray Obama find a solution when dealing with all the dangerous detainees there.

Grace Explosion said...
This comment has been removed by the author.
R. Bosque said...

I say we release them on Martha's Vineyard right next door to Katie Couric. ;-)
-Raul

Norm said...

Grace, you're on the money.

repsac3 said...

I also agree with Grace & Norm. (& with Donald J. Guter, a retired rear admiral who formerly served as the Navy's top uniformed lawyer and was an advisor to the Obama campaign, who was quoted in the article as saying):

"Most of these problems we made ourselves. We could have had enough to convict [Khalid Shaikh Mohammed, who was subjected to the simulated drowning technique known as waterboarding while held by U.S. officials, and thus has evidentiary issues]. We didn't trust our own institutions that had served us all these years. We didn't trust in our federal courts, we didn't trust in our Constitution."

I do think the Bush administration created some of these issues, and I can't see anyone taking any pleasure in the fact that Obama & his team are getting stuck cleaning up the Bush Admin's mess on this (& will thus get the blame for whatever evil happens as a result.) That isn't to say it wouldn't be difficult even if Bush had followed US & international customs & law in this regard, but "allegations of abuse or tained evidence" would be much less of an issue if he had.

Detaining anyone without charge or trial goes against the words in our founding documents ("all men..." not "all citizens..." or "everyone except those captured on the battlefield..."), and should never take place, no matter the circumstances. I suggest that it is unAmerican & inhuman to do otherwise.

Anyone picked up on the battlefield & locked up without benefit of trial is an accused terrorist, but not a terrorist. The US is better than that, & up until Bush, always has been. Here in the US, we don't lock up anyone on someone's suspicion that the accused may have, or may in future, break the law. As to whether the person did commit a crime, ether we can prove it, or we cant. As to whether someone will commit one, Minority Report is not yet our future, and I will fight tooth & nail against anyone arguing it ever should be.

Part of being the sole superpower is setting a good example for the rest of the world, in hope that everyone will follow our lead, even when we know some countries & leaders won't. Our good words (past, present & future) mean little if our actions do not live up to the high standards we set. We can do better. The world is counting on us.

mamapajamas said...

We have a problem here.

Are the prisoners at Guantanamo prisoners of war or not?

If they're POWs, then they can't be put on trial as criminals. At all. The Geneva Conventions forbid that. Therefore, we can't put them in the US legal system.

If they're NOT POWs, the Geneva Conventions don't apply to them at all. They're illegal combatants, who, according to the GC, we can shoot as soon as they're identified. Sending them to Guantanamo was a favor to them.

The fact is that virtually all of the prisoners who were detained under questionable conditions (the cases of people who might have been framed by a disgruntled neighbor or political enemy) have already been released-- many of then to OUR detrement as they were once again caught operating in terrorist circles and ended up back in Guantanamo. There were once over 600 prisoners at Guantanamo, and now something over 200. That is a LOT of prisoners who have already been released.

The ones who are left are virtually all people who were captured on the battlefield as illegal combatants.

And they're extremely dangerous.

What else can we do with them?

East Coast Libertarian said...

If they're NOT POWs, the Geneva Conventions don't apply to them at all. They're illegal combatants, who, according to the GC, we can shoot as soon as they're identified. Sending them to Guantanamo was a favor to them.

Common Article 3 of the Geneva Convention deals with unlawful enemy combatants (i.e. those who violate the laws of war - which POW's do not). There are bare minimum requirements that must be followed. They can be tried by a military court and summarily executed if found guilty, but the idea that the GC does not address them at all is false.

This was a key point in Hamdan v Rumsfeld.

mamapajamas said...

I stand corrected.

On the other hand, the ones who were captured under questionable circumstances are gone.

Which leaves some extremely dangerous people to put in the US court system under conditions where they might have to be released because of classified information that can't be brought out in court.

So where does that leave us?

Purplehaze said...

"If they're NOT POWs, the Geneva Conventions don't apply to them at all. They're illegal combatants, who, according to the GC, we can shoot as soon as they're identified. Sending them to Guantanamo was a favor to them. "

hmm .....lets see, country A goes to country B and fights apparent "terrorists". Country A captures combatants of country B, many of whom could be fighting to defend their country from foreign invasion.

But the so called "enemy combatants" are the combatants of country B.

makes sense.

Sorta like if people invaded America and captured Americans, the Americans could become enemy combatants right?

So thats how it works.

Anonymous said...

Bravo purplehaze.

Finally I have read someone else write the analogy I have been using.

Also I agree with Grace.

But to tell you all the truth, I have given up on protesting. We will never see true democracy in any western nation. And do I really care? Not really.

Let the people in Iraq sort out their own problems. I am sure they are eager too without our help. They have done so for thousands of years. And the media makes it seem like they can't like without the US occupation.

Please explain.