Monday, November 24, 2008

Hard, But Not Impossible

January 20,2009, the date of President Elect Obama's inauguration, is only 57 days away, so the press has already begun telling us what a hard time the new president will have keeping his campaign promises. One of those promises, to close Guantanamo Bay and bring the detainees to the US for prompt and proper judicial handling, was the subject of this article in today's Los Angeles Times.

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.

Obviously, each of the cases will have to be rigorously examined. Those cases which have not been tainted by evidence secured by torture or by other dubious means can proceed to trial in a civilian court. The detainees should be charged with the appropriate crime, and then should be allowed all of the rights of any other defendant before the bar, including access to all of the evidence the prosecution is holding, especially exculpatory evidence. That is the easy part of the process.

The hard part comes with the rest of the cases. What do we do with those men who can't be tried because the evidence for the nebulous charges is tainted and can't be used? Presumably (although there is no way to be certain), this class of detainees contains those who intended to harm the US in some fashion, but the evidence to prove that will be excluded.

And what do we do with those detainees who were erroneously picked up, who had done nothing wrong, nor did they harbor any particularly ill-feelings toward the US at the time? After six or seven years of detention, "intensive" interrogations, and poor treatment, it's likely that they harbor some pretty serious ill-feelings towards us now, and understandably so. They may not have been "terrorists" before, but chances are more than a few of them are willing to embrace that role now.

Finally, what do we do with those innocents who can't be returned to their home countries for fear that they will be subject to torture and/or death by their own governments once they reach home?

The article suggests that President Obama will have to ask Congress for a new law, one that allows for the indefinite detention without charge of these prisoners. I do not see the necessity for such an unconstitutional law, not for any of these prisoners.

Those in the last class who cannot safely return home should be relocated, either here in the US or in other nations that can be counted on to treat them more humanely than we have. Homes for the Uighers have already been found here in the US, now it is just a matter for the appellate court to order them released.

The other two classes, as risky as it may be, should also be released, either here or abroad. If we indeed believe in the rule of law as expressed in our most precious national document, we have to release them, knowing and facing the consequences which will be traced back to the last seven years in Guantanamo.

Ultimately, it is not about who they are. It's about who we are, or at least say we are.



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