Wednesday, November 12, 2008

Closing Gitmo

Today's Washington Post has an article which suggests that President Elect Obama is planning to carry through on his campaign promise to close the detention center at Guantanamo Bay. Further, he intends to relocate the detainees in federal prisons in the US and to try them in US courts, rather than by Military Commissions. The logistics for such moves will be daunting, according to the article:

Announcing the closure of the controversial detention facility would be among the most potent signals the incoming administration could send of its sharp break with the Bush era, according to the advisers, who spoke on the condition of anonymity because they are not authorized to speak for the president-elect. They believe the move would create a global wave of diplomatic and popular goodwill that could accelerate the transfer of some detainees to other countries.

But the advisers, as well as outside national security and legal experts, said the new administration will face a thicket of legal, diplomatic, political and logistical challenges to closing the prison and prosecuting the most serious offenders in the United States -- an effort that could take many months or longer. Among the thorniest issues will be how to build effective cases without using evidence obtained by torture, an issue that attorneys for the detainees will almost certainly seek to exploit.

I was fascinated by the last sentence from that quote. "Exploit": there's an interesting word choice. We know that in the civilized world (a place from which we've removed ourselves) torture is illegal. We also know that information obtained by torture is hardly reliable. Why wouldn't an ethical defense attorney seek to exclude such evidence?

And it isn't as if the federal courts will be a walk in the park for those detainees who will finally be tried. As Ruth has pointed out in her series on the Holy Land Foundation trial (scroll down for the latest), the trials can be just as contentious and the prosecutors just as heavy handed as they've been so far under the Military Commissions system. Still, the rules of evidence and the concept of fairness is at least expected in such a venue. Those who in fact engaged in terrorist crimes should have nothing to complain about.

Our civilian court system has worked effectively when dealing with crimes, and, after all, that is what the US is complaining those being detained engaged in. Here are some interesting statistics on the issue (cited in the WaPo article):

In a report issued in May, Human Rights First noted that since the Sept. 11, 2001, attacks, there had been 107 successful prosecutions of international terrorism cases in the federal courts, compared with three convictions in military commissions at Guantanamo Bay, including one plea bargain.

When there is "clean" evidence gathered in legally acceptable ways, the prosecutor has a shot at a conviction without depriving the defendant in due process. The problems prosecutors will face in these cases is that in many cases, the evidence isn't clean and hasn't been gathered in legally acceptable ways, nor has that evidence been shared with the defendants (many of whom still don't know what precise charges have been made against them). Those prosecutors have a much rougher road ahead of them, but that is not the detainees' fault.

If we are serious about changing this nation, of returning to our tradition of the rule of law, then we must begin with Guantanamo Bay. Risky? Perhaps, but after the last eight years, it's a risk we have to take.

"There is always a risk of acquittal, and there is a risk some people who are released will return to the battlefield," said one Obama adviser. "There is no risk-free option."

Ultimately it's not about who "they" are, it's about who we are and what we want to be.

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Blogger Koshem Bos said...

First, let's make clear that I am totally against torture. Yet, it's an American myth that information extracted by torture is unreliable. The whole world is not stupid and they wouldn't use torture if it were unreliable. Sadly, you have to know what you are doing.

It's great news that they are going to close Gitmo. It was always just a reflection of the Bush administration stupidity and cruelty and served no other purpose. There are some rumors that Obama will close it, but will have special treatment for some prisoners; let's hope the rumors are wrong.

11:24 AM  

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