On the Contrary

Let’s step back a minute and consider our problem.  In the American tradition of justice, if you are accused of crime, and by right of habeas corpus they can’t just hold you, they must present their charges, you are entitled to a fair and speedy trail.  In the “war” on terror, if it is a war, then enemy combatants must be treated according the Geneva Conventions and can be held as prisoners of war until there is a resolution at which time they will be repatriated.  The exception here is when war crimes have been committed.  This is where the military tribunals come in, but these are like Guantanamo, tainted procedures.  Now the first problem with this construct is that the “war” is indefinite and there is no country involved.  That raises the issue of holding combatants indefinitely and having no country to repatriate them to when hostilities are finally resolved.

Then there is the approach of looking at terrorists as criminals and charging them with crimes against the state either in federal courts or military tribunals.  Now the problem is you can’t have it both ways because the Geneva conventions pertaining to war do not allow POWs to the tried in civil courts as criminals.  The approach we are taking seems to be the criminal approach in respect to the Guantanamo and other detainees.  Guantanamo presents a particular problem because detainees were originally moved there, and some were tortured, to be outside the jurisdiction of our federal courts.  Not too long ago both Democrats and Republicans were on the same page about Guantanamo, and that was that it needs to be closed because it is a symbol of our own failed values.  Now in order to close Gitmo, the detainees must either be repatriated or tried and incarcerated in federal facilities in the U.S.  There is the rub.

Now I wrote yesterday about the problems repatriating or trying these folks in our federal courts.   Today I would like to talk about military tribunals and preventative detention.  Military tribunals have a place when you imagine that the evidence is classified and members of the jury as well as the judges and lawyers need security clearances.  The problem with them is that in their present form they have been so slanted in favor of the government that no one believes the detainees will get a fair trial.  Now there are many who don’t care.  These guys are terrorists aren’t they?  And the answer to that is some are and most are not.  President Obama has promised to make the rules (like rules of evidence) fair but I don’t think it is going to work unless these detainees get the full protections afforded in a court marshal.  I guess my argument is simply that no one will see an outcome from these trials as fair and the damage done by these trials is worse than not having them.  This will be an ongoing debate and we will see what happens, but I have heard several military lawyers who are defending the detainees state that there will never be a fair trial in this tainted military system.

Now here is the gist of the original problem:  Most wanted the facility closed, the not so bad guys picked up by mistake (and there were a ton of them in a bounty system for terrorists) repatriated to their home countries to be dealt with there, the bad guys to be tried, convicted, and put in prison with the key thrown away, and no one who is released to return to the battlefield..  Now enter the Republicans with the claim that it is unsafe to put them in our prisons (keep Gitmo open), many will use our system to get out of their sentences and be walking our streets (keep Gitmo open), and the pentagon releasing a study no one can substantiate that one in five of the 525 people released by the Bush administration (a highly dubious number, but…) had returned to terrorist activities (keep Gitmo open).  All of this has a common thread with President Obama’s final proposal that some of these detainees cannot be tried but are dangerous and we must preventatively detain them.  In other words they are all looking to preventative detention and the Republicans want this to be at Gitmo.

In a “war” situation that is in fact what we have with prisoner of war camps.  These people are incarcerated until hostilities have been concluded just so they can’t return to the battlefield.  But what if hostilities are never going to be concluded?  We seemed to have moved these guys to the criminal justice system and there is very little in this system, and for a good reason, to allow for preventative detention. We already have some legal tools that allow for the detention of those who pose danger: quarantine laws as well as court precedents permitting the confinement of sexual predators and the dangerous mentally ill. Every day in America, people are denied bail and locked up because they are found to be a hazard to their communities, though they have yet to be convicted of anything (New York Times).  But we are on a slippery slop here.  Remember the movie Minority Report where the hero could use psychics to prevent crimes by interceding before a crime was committed, then the tables were turned on him?  The question is who decides who is going to commit a crime and what standards are applied to prevent abuse of the incarceration without trail or even a crime committed.

My point here is very simple.  We are all dancing around it, but that is what is being considered.  We need to discuss this and look at the down side because it has a large window in which abuse can slide through.  Are we so afraid for our safety that we are willing to basically gut our system of rights and judicial procedures?  I hope not, but let the debates begin.  But let’s not trick ourselves.  We are really talking about contunuing Bush policies, somewhat spiffed up, just in a different place.  Are we still so afraid to live out our values that we want to go down this road?