What to do, what to do. . . about Guantanamo?
Closing the Guantanamo Bay detention facility will be one of the most difficult challenges of the Obama administration. His own staff has been divided on how to do it. FBI Director Robert Mueller worries about detainees in U.S. prisons. Michele Flournoy, number three at the Pentagon, maintains that the U.S. must set the right example before our allies will accept detainees for repatriation. Rendition has been another matter, entirely, in the past when the Bush administration implemented the practice of rendering U.S. prisoners overseas to other countries where they were interrogated under torture.
How other law abiding countries handle suspected violent extremists offers a contrasting picture of how it is managed by the United States. The legal fallout over this has sent cases to court (in particular the Jeppesen/ACLU case). The Obama DOJ has asked a federal appeals court to block the case, claiming "state secrets" necessitate throwing out the case, taking up the claim of the previous administration. On June 22, federal judge Richard Leon ordered Abd al Rahim Abdul Rassak, a Syrian held by the U.S. for years, released because he was a victim of torture by al-Qaida. He "emphatically rejected the government's claims against Rassak. . . adding that U.S. officials are taking a position that defies common sense."
How will the U.S. continue to handle violent extremists? Earlier this month Glenn Greenwald analyzed the current practices of many countries, contrasting them with the administration's probable call for indefinite detention by the U.S. He concluded that, "numerous other countries are, with their actions, adhering to the values and principles which we, with words, righteously claim to embody." Now the White House has drafted an executive order reasserting presidential authority to incarcerate suspects indefinitely, bypassing Congress, according to the Washington Post's Peter Finn and ProPublica's Dafna Linzer. To quote the lead,
Such an order would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.
After months of internal debate over how to close the U.S. military prison at Guantanamo Bay, Cuba, White House officials are growing increasingly worried that reaching quick agreement with Congress on a new detention system may prove impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January 2010 deadline.
Is Bush precedent Obama precedent? Zachary Roth at TPM Muckraker had this chilling conclusion
to the news of the draft memo: "If the last eight years have taught us
anything, it's that executive abuses, left to continue unchecked for
many years, have a tendency to congeal into precedent." It need not be
that way. The Constitution has been a powerful bulwark with plenty of
capacity to sustain the rule of law, particularly with a president
whose specialty has been Constitutional law.
See also Behind the Links, for further info on this subject.
Blogs: My general purpose/southwest focus blog is at Southwest Progressive. My creative website is at Making Good Mondays. And Carol Gee - Online Universe is the all-in-one home page for all my websites.
Technorati tags: news news and politics politics guantanamo rule of law
Remember when detention was when you were led out of the cloak room where you had resided all day and confronted with a 7th hour? Well I do.
This is confusing, baffling, indefensible, unconstitutional.
And gtmo, geeeez. We have people in prisons right now, all over the country, guilty of the most heinous acts of terrorism. People who murdered entire families. People who blew up banks. Cannibals for crying out loud.
I do not understand this.
June 28, 2009 4:48 PM | Reply | Permalink
Remember back in the old days (say, pre 2001) when we used to rely upon the Constitution to provide guidance on affairs of state?
This mess began when Cheney & Bush decided a descent into "the Dark Side" was an appropriate response to terrorists, both alleged and actual. It was easy to foresee the problems such a diversion from Constitutional principles would create, and we should not be surprised to confront them now. Cheney's neocon bred chickens have come home to roost.
There is only one solution here, and that is to hew as closely to the Constitution as possible in our response. Wherever it takes us. Whatever the result. The reestablishment of the Rule of Law trumps any other concern, even if it means we have to "pay the piper" for the egregious mistakes made by the previous Administration. Yes, even if it means releasing Guantanamo inmates because they cannot receive a fair trial; Even if it means accepting them into our prison communities to await legitimate trial.
We need to show the world that we are better than this; better than the lawless nightmare the neocon chickenhawks have left as their legacy.
June 28, 2009 5:08 PM | Reply | Permalink
SJ -- Great comments. You are right that hewing right to the Constitution takes raw courage from leaders, and followers like us. The shameful neocon legacy must be dismantled. . . small victory by small victory.
Thanks!
June 28, 2009 5:43 PM | Reply | Permalink
=(
June 28, 2009 8:42 PM | Reply | Permalink
That is the answer. I can add nothing to it.
June 28, 2009 10:15 PM | Reply | Permalink
Sorry you got detention. I'll bet that set your injustice thoughts a-stirring.
As an attorney I sense that this is really hard for you. It is hard for me, and I am not a lawyer.
One of the primary issues, it seems to me is that much of the evidence against unlawful behavior has been tainted by torture. Their vengence and misguided measures mad the country pay an enormously high and unnecessary price.
Thanks for your comments. I appreciate your fierceness.
June 28, 2009 5:12 PM | Reply | Permalink
What is the problem exactly? All I've heard is that evidence against the detainees is inadmissable because it was forced by torture.
How many of these people are there? How much damage can they do if they are released to their homeland? Surely there are already so many terrorists out to get us that a few more won't make any difference. I really don't understand what it is about these cases that would makes Obama think there is no alternative, constitutional solution to the problem.
June 28, 2009 6:35 PM | Reply | Permalink
What it is about these cases is that it is a political problem -- Rethuglicans have sown panic about the possibility that the detainees are too dangerous to have on American soil! And the public opinion polls show that these ridiculous claims have traction.
So here is Obama claiming that because closing Guantanamo might not get done by his self-imposed deadline he is willing to set a precedent or continue a precedent set by Bush for imprisonment on the basis of 'Presidential' review!
Long live the King.
June 28, 2009 7:58 PM | Reply | Permalink
These detainees will not be tried. That is the ethical and moral dilemma. How can you hold these people without giving them a trial?
June 29, 2009 3:54 PM | Reply | Permalink
This is a difficult issue that tends to invite oversimplified solutions, at least as I see it. I think indefinite detention would be an unfortunate answer to the problem, but it may turn out to be the only practical course available to the President. I've commented in more detail elsewhere, and anyone interested might visit that thread for the details - http://tpmcafe.talkingpointsmemo.com/talk/blogs/tlees2/2009/06/no-indefinite-detention.php
June 28, 2009 8:19 PM | Reply | Permalink
Or, we could simply lead them out into the yard, blindfold them and shoot them a few times through the head, followed by a shot through the heart. Another simple, easy to do solution. Of course, it would satisfy the Cheney followers much more if we instead slowly tortured them to death. Again, we could simply send them to Egypt with directions for the Egyptian jailers to have fun with them. Or, maybe take them up in a helicopter and shove them out the door.
I have given those equally effective options a thorough analysis, thinking through the pros and cons, and decided that since I claim to be a civilized, sane individual I prefer to simply follow the guidance of the Constitution. In this case that "oversimplified solution" is the only good solution that I will accept. And, it is the only one any other person fitting that description would accept.
June 28, 2009 10:22 PM | Reply | Permalink
Yessir, also.
They must either have a fair trial, or be released.
Those are the options, let's stop overthinking this.
June 28, 2009 10:28 PM | Reply | Permalink
Would our country be in grave danger from potential terrorist activities undertaken by these 23 individuals or would their testimony to foreign press outlets be just too embarrassing for the US government? I'm willing to take a chance either way. The longer they're held without the right to a trial, the more terrorists are born and motivated to fill their shoes.
June 29, 2009 1:06 AM | Reply | Permalink
I'm reluctant to become engage in an argument in which each person repeats the same claims, with no progress toward an agreement. I would still recommend that the link I provided above be visited by anyone interested in my own analysis of the problem.
If anyone does that, what I would then invite them to do is first, summarize my position in the most forceful and convincing way my views could be stated by a proponent of them, and then offer specific rebuttals, if they wish, to each of the points I tried to make. What I would ask they not do is simply repeat the claim that there is only a single civilized, Constitutional, and realizable way to solve the problem. If that's what they believe, they must explain why their assertion is true rather than simply say it many times over.
June 28, 2009 10:53 PM | Reply | Permalink
If they are U.S. citizens, then they have to be either tried or released in the U.S.
If they are not U.S. citizens, then they still have to be either tried or released, but I see no reason to have to release them in the U.S. unless they are such that they could qualify for immigration.
It seems to me that the Palau option should be used for any cases where it can be.
For other cases, well, we must have a few islands where we can release them until someone will take them.
June 29, 2009 1:23 AM | Reply | Permalink
Good discussion, folks. And I tend to agree with the opinions that say that adhering to Constitutional rules of law is the way to go. It seems to diminish the power of the Bill of Rights to say that this argument is an unreasonable point of view or oversimplification. The Constitution should not have to justify its own existence and standing.
Again -- to be trite -- it is not about the detainees, but about us.
June 29, 2009 8:03 AM | Reply | Permalink
I believe the Obama Administrations would fervently hope to deal with all detainees in a way that avoids the need for indefinite detention, but this may not be possible if there are a small minority left who fit into the following category:
1. They are known to be high-level, dangerous terrorists on the basis of good evidence.
2. The evidence can't be used in court because either it's tainted (e.g., obtained by torture in another country) or its presentation to a jury would jeopardize national security - a claim that has been abused in the past but is sometimes valid.
3. No other nation will take them.
4. The Congress, as it inevitably would, passes a law forbidding their release as free men onto U.S. territory unless the President certifies they pose no danger.
5. The Congress refuses to allocate funds to close Gitmo unless all detainees are dealt with to its satisfaction.
Under those circumstances, I see only two clear options for President Obama. The first is indefinite detention at Gitmo, and the second is indefinite detention somewhere else. I believe he would choose the second as a means to close Gitmo.
I've provided further explanations at:
http://tpmcafe.talkingpointsmemo.com/talk/blogs/tlees2/2009/06/no-indefinite-detention.php
June 29, 2009 9:59 AM | Reply | Permalink