As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Thursday, May 07, 2009

Terrorizing The Rule Of Law

The GOP geniuses think they've found an issue they can run with. This has slowly built over the past several weeks, but now they've done a full rollout. It starts with the movie trailer, a preview of coming attractions.

Then they followed through with the main event, a bill literally called “The Keep Terrorists Out Of America Act,” which would prohibit the transfer of any "Terrorist" from Guantanamo Bay into a prison facility in the United States, without approval from the state's Governor and legislature, and some other legislative hoop-jumping.

Taken to its extreme, Republicans would call for the immediate closure of all prisons ("criminals... in your community!"), and the dispatching of all 2.3 million prisoners to some offsite floating barge, Australia, or that island of plastic in the Pacific. To suggest that a maximum-security prison could not possibly hold a Dangerous Terrorist is an insult to the men and woman of the federal corrections system, who already hold convicted terrorists in custody who received justice through a court of law, and basically acknowledges that those facilities are completely insecure, and should be feared by local residents. I'm sure the RNC and the Republican members of the House will pick up the costs of moving every single prisoner over to that plastic island. Because think of the children.

When pressed on the point that Americans held 425,000 German POWs at the height of WWII, bill sponsor Pete Hoekstra, who is crazy, incidentally, casually remarked that the threat of Al Qaeda surpasses the Nazis.

A substantial chunk of the Republican Party believes that people who live in caves represent a greater threat to the American way of life than the Third Reich. Just so you know.

However, I'm convinced that this is a bit of misdirection and Overton Window-lifting. Of course the idea that Scary Terrorists would endanger local communities while in prison is absurd and should be rejected. But that's not really the ultimate plan. John McCain and Lindsey Graham posted on the conservative blackboard, the Wall Street Journal editorial page, with the more "sensible" view - that we must hold suspects indefinitely without trial for as long as we please, in violation of habeas corpus statutes, until they are tried in sham courts without Constitutional criminal justice protections.

• Second, military commissions remain the appropriate trial venue for these individuals. We would strenuously oppose any effort to try enemy combatants in our civilian courts. By an overwhelming bipartisan vote in 2006, Congress passed the Military Commissions Act, which set forth procedures for trying enemy combatants for war crimes.

Our domestic criminal laws -- including their treatment of classified information -- are ill-suited for the complex national security issues inherent in the trial of enemy combatants. We have great faith in our military justice system -- appropriately modified for war crimes trials -- and we believe that military judges and lawyers render fair and impartial justice not only for our troops, but for enemy combatants as well.

• Third, preventive detention will continue to have a place in the war on terror . Under the law of war, the idea that an enemy combatant has to be tried or released is a false choice. Rather, it is well-established that combatants can be held off the battlefield as long as they present a military threat.

While there is little doubt that we initially cast the net too broadly in determining who merited enemy combatant status, the Department of Defense estimates nearly one in 10 detainees released from Guantanamo have returned to the battlefield, including Said Ali al-Shihri (al Qaeda in Yemen's second-in-command), and Abdullah Gulam Rasoul, who reportedly now serves as the Taliban's operational commander in southern Afghanistan. We cannot let this continue.

A significant group of detainees still in custody at Guantanamo may be too dangerous to release, but they are not suitable for war crimes trials. In these cases, a system needs to be devised in which a designated national security court, with a uniform set of standards and procedures administered by a civilian judge, hears the petitions for habeas corpus authorized by the Supreme Court, and an annual interagency review is conducted to determine whether the detainee remains a security threat to the United States.

"Preventive detention" is a nice turn of phrase. "I think you may steal a candy bar later. Better put you in jail for a few months until everything blows over."

And unbelievably, this "fallback" position, which I always considered the reason to close Guantanamo in the first place, has gained traction inside the White House.

The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself.

Officials said the first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.

Continuing the military commissions in any form would probably prompt sharp criticism from human rights groups as well as some of Mr. Obama’s political allies because the troubled system became an emblem of the effort to use Guantánamo to avoid the American legal system [...]

In a news conference this week, Attorney General Eric H. Holder Jr. emphasized that if the administration did use military commissions, the rules must give detainees “a maximum amount of due process.”

But, speaking of detainees whom American officials have accused of involvement in major terrorist plots, Mr. Holder added, “It may be difficult for some of those high-value detainees to be tried in a normal federal court.”

These military commissions represent a total obviation of the rule of law, an attempt to gather convictions they could not otherwise get. And what's left unsaid is the always shaky phraseology of the Obama plan, where some Gitmo detainees would be tried, some released, and this vague "third category," where the legal black hole of Guantanamo apparently remains.

It does no service, particularly in relating to our allies, to just insource Guantanamo with the same methods. People weren't angry about the site or the symbol, but the policies. But because the Republicans are being so transparently ridiculous with their "Eek! Prisoners going to prison, they'll kill us all!!!" pose, there may be a tendency to back up the White House's viewpoint. Not until they make perfectly clear that they intend to either try Gitmo prisoners in American courts, or release them. Any other options are unacceptable.

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