Obama Plans for Closing Gitmo; No Word on Other Secret Prisons

Good, Obama will close Gitmo:

Under plans being put together in Obama's camp, some [Guantánamo Bay] detainees would be released and many others would be prosecuted in U.S. criminal courts.

Potentially bad:

A third group of detainees -- the ones whose cases are most entangled in highly classified information -- might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans aren't final.

The protections built into such a new court will be the key to whether these people get treated fairly.

Obama has said the civilian and military court-martial systems provide ''a framework for dealing with the terrorists,'' and [Obama legal adviser Prof. Laurence] Tribe said the administration would look to those venues before creating a new legal system. But discussions of what a new system would look like have already started.

''It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts,'' Tribe said. ''It will have to both be and appear to be fundamentally fair in light of the circumstances. I think people are going to give an Obama administration the benefit of the doubt in that regard.''

Though a hybrid court may be unpopular, other advisers and Democrats involved in the Guantanamo Bay discussions say Obama has few other options.

I'd just note that long before 9/11, Tribe was no doctrinaire liberal on national security trial policy. Although conservatives like to portray him cartoonishly, he's been thinking about these issues for some time. When he says "fundamentally fair in light of the circumstances", he means it.

This hybrid system sounds like the Orwellian "National Security Courts" that I thought back in May Bush would spring on us:

The key issues, as I see it, are truly impartial juries and viable avenues of appeal against questionable evidence, like hearsay. Clearly, it's not possible politically to argue for full trial rights, but we can make the case that enabling defendants to vigorously defend themselves on the facts will produce better decisions and raise our standing in the eyes of the world.

The ACLU has a stronger stance:

On the first day in office, the president should order the shutdown of the Guantánamo Bay detention facility and restoration of the rule of law for the detainees now held there. Specifically, the president should order the prompt shutdown of the detention facility, the transfer of any prisoners charged with a crime to a facility within the continental United States for trial in a federal criminal court or before a military court-martial, and the transfer of all uncharged detainees to countries where they will not be abused or imprisoned without charge.

Court-martial or federal criminal trial, or nothing. They're not happy about the hybrid system idea:

"I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake,'' said Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees. ''We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems.''

I think this is a fine negotiating position but there is little chance we will end up there. The entire third group of prisoners - which probably includes some incredibly dangerous people - would have to be released because none of the evidence against them would be admissible. No one would take them except countries that sponsor terrorism, and once released, they'd go right back to attacking U.S. forces or civilians around the world. Congress and President Obama would be rightly pilloried by the public for letting them out.

There are several areas that I see that have to be worked out:

• The biggest problem is how to deal with evidence that is inadmissible under the Federal Rules of Evidence, because it is inadmissible hearsay, or because testimony or confessions were obtained through torture, or because the chain of custody is considered reliable for intelligence-gathering purposes but would not satisfy an Article III judge. The goal here has to be the reliability of the evidence and the ability of the jury to assess how credible it is.
• Next is the right of the defendants to confront witnesses and see the evidence against them. Can spies and informants be cross-examined without putting their lives in danger? Methods of gathering signals intelligence might have to be revealed to jurors as well as the defendants. Will defendants be given the time and resources necessary to conduct their own investigations?
• Who will be the jurors? It has to be civilians, in my view. Military juries are for courts martial.
• Appeal rights: Specifically, to which court may an appeal be made, what bases for appeal will be available and what level of scrutiny will they be given?
• Sentencing: Will the death penalty be an option? For lengthy prison terms, will there be any process by which a defendant could seek release down the road if circumstances change?

To be honest, I can imagine so many insoluble scenarios here that I couldn't even suggest what to do. It's yet another area that Bush has royally screwed us. The best thing I can hope for is that most of the prisoners are people who we can just let go or give normal federal criminal trials to, and the number of prisoners in the third category is small.

Also, the article only mentions Gitmo. Although Gitmo is large and symbolically important, we reportedly have secret prisons all over the world. Is Obama going to include people being held there for long periods of time in this program?

Comments

[zenpundit]

Civilian trials in American courts of members of foreign guerilla insurgencies (Taliban)or foreign paramilitary groups (al Qaida)captured overseas in an armed conflict with the U.S. are inappropriate, jurisdictionally speaking. It's also a bad idea in terms of policy because it further muddies the water between a civilian criminal defendent and an armed combatant. Detainees belong in proper military courts tried under the relevant articles of war, something the Bush administration has refused to do.

Military tribunals are also a legitimate option but they generally have an extraordinary character ( Nuremburg, Tokyo, Tribunal for the Former Yugoslavia etc.)and international participation.

Military commissions have precedent under SCOTUS but the Bush administration has discredited their use. I've always thought that was by design and that their goal was always to avoid trials and finesse ad hoc indefinite detention.