Friday, January 23, 2009

Is Obama Really Helping Give Justice to Gitmo Prisoners

I really wonder if people are truly thinking this through and just are blindsided by the PR.

One issue that seems to go unnoticed

In fact, if you want to get crazy and look past the document-signing photo-op and the round of Oval Office applause, there’s reason for human-rights activists to be profoundly discouraged: “The administration already has suspended trials for terrorist suspects at Guantanamo for 120 days pending a review of the military tribunals.” But, hey, what’s a four-month delay of habeas corpus compared to the nation-defining issue of . . . prisoner relocation?

Pointed out elsewhere the future looks a lot like well the last couple of years

And of course this ducks the real issue: what legal system we are going to use to process and evaluate the detainees. The Obama team apparently would like to reinvent the wheel, but not really:
An alternative to military commissions that is gaining political traction is the idea of a national security court, composed of Article III judges to supervise detentions and administer trials. There are real risks here. Politically, it will cost time and capital that Mr. Obama probably prefers to spend elsewhere. Practically, any new system is likely to face the same legal challenges from the white-shoe lawyers at Shearman and Sterling and anti-antiterror activists that for years tied down military commissions.
But legal experts across the political spectrum including Harvard’s Jack Goldsmith, the Brookings Institution’s Ben Wittes and Georgetown’s Neal Katyal advance this option as a way to restore “credibility” to the detainee process. The national security court would operate under rules of evidence and classification that would allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions.
Then again, such rules would be almost identical to those now used in . . . George Bush’s military commissions. On wiretaps, interrogations and now Gitmo, the new Administration is discovering that the left-wing attack lines against Bush policies are mostly simplistic illusions. Now those critics are Mr. Obama’s problem
So in the end we’d have essentially the same legal system, extremely dangerous prisoners on U.S. soil, and the same complaints from the civil liberties lobby. This is a peculiar type of change indeed, one attuned to the elusive and subjective feelings of “world opinion,” and the liberal attorneys now populating the Justice Department.

Overlooked often in the latest Supreme Court Case that discussed this issue in Boumediene v. Bush is the Chief Justice's Dissent where he points out the embarrassing fact that little of this seems to have to do with the prisoners
For instance

The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.......

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (Breyer, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.
I respectfully dissent

It appears this will now go on for some time and in the end what we will have n the future looks a lot like what we had in the past and that the prisoners will still be years away from getting a final conclusion to their matters.

In the end I agree with Senator McCain who said

“I think that it’s a wise move,” McCain said about closing Guantanamo Bay. “But I also think that we should have addressed this whole issue completely, because it did not address the issue of those who we have in custody and can’t — and no country will take them back. We should have addressed the issue of those who we know would pose a threat to the United States, but we don’t have sufficient evidence to move forward.”
McCain said instead of closing Guantanamo Bay outright, he would have first continued the military commissions, which “after years of delay and obfuscation” were finally moving toward trials.
“So, the easy part, in all due respect, is to say we’re going to close Guantanamo,” McCain said. “Then I think I would have said where they were going to be taken. Because you’re going to run into a NIMBY [not in my backyard] problem here in the United States of America

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