Thanks to Anonymous for the blog post request on how the Obama administration will treat Guantanamo detainees.
Following through on a campaign promise, Obama's advisors are planning to close Guantanamo. The Huffington Post quotes Senator John Cornyn's repsonse to the news: "It would be a stunning disappointment if the one of the new administration's first priorities is to give foreign terror suspects captured on the battlefield the same legal rights and protections as American citizens accused of crimes."
According to Cornyn and his Republican allies, Obama will treat terrorists as regular criminals, making him soft on terrorism and the country unsafe.
Even though Obama almost certainly will not move Guantanamo detainees into the criminal justice system without any restrictions, Cornyn's premise that the criminal justice system cannot effectively prosecute terrorists should be challenged. The first World Trade Center bombers were prosecuted in U.S. courts, leading to convictions without any essential military secrets being revealed (and without doing damage to our reputation abroad).
Regardless of whether whether detainees are tried within civilian or military courts, Obama must provide detainees with more legal rights than the current military commission scheme. This current scheme is biased in favor of obtaining convictions, doing damage to America's reputation amongst our friends and a recruiting tool for our enemies. For example, military commissions require only concurrence of two-thirds of its members for conviction and provide for the potential admission of evidence derived from torture.
The symbolism of closing Guantanamo and making an effort to try detainees will go a long way to improving how American is perceived by our friends and enemies. If Obama combines these measures with increased legal protections for detainees (even if they fall short of the protection afforded by the criminal justice system), Obama can achieve an optimal mix of effectively prosecuting terrorists and improving America's standing in the world.
-Law Dude
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3 comments:
Thanks, Law Dude. That was fast. And much appreciated.
Let's flesh out some of the inadequacies of the Combat Status Review Tribunals the Bush administration tried to use:
- They allowed in hearsay
- Detainees were not entitled to an attorney at the proceedings
- Detainees could not confront witnesses who testified against them (that is, could not cross-examine witnesses)
- Detainees were not necessarily allowed to have witnesses testify on their behalf
- Detainees were not allowed to review all evidence presented against them prior to the hearing
Now, the proceedings were not true criminal trials, but rather merely made a determination as to whether the detainee was an enemy combatant or not. This has huge implications though, as a prior Supreme Court case Hamdi v. Rumsfeld recognized the President's right to detain enemy combatants for the duration of the conflict.
These tribunals only make sense if you have utmost trust that the powers that be won't abuse the serious holes in the process. Now who would trust any one to do such a thing?
Another blog post request: analysis of how other modern democracies address gun control, homosexual marriage, healthcare, environment, abortion and other hot button issues in the US.
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