This is a bit dated, but Jack Goldsmith, whose claim to fame is being less insane than John Yoo and Jay Bybee, and Jane Harman, former Democratic congresswoman and now President of the Woodrow Wilson International Center for Scholars (NOT the one at Princeton, it seems), had an Op-Ed in the WaPo entitled "What should America do with Guantanamo’s high-risk detainees?"
This is, apparently, a vexing question for the two of them. They begin with the hard question,
The easiest question is whether to release the 54 who the administration has determined aren't dangerous. Whoops! My bad. I guess that is the easy question. And, indeed, one would think that people that are not dangerous should be...released! But...
A tougher issue is where to send the remaining non-dangerous detainees. Aha! Now we're talking.
The administration has already persuaded third-party countries to take 100 or so of these detainees, including several dozen in the past few months. Wait, I thought there were 54? So, we have places for them and....we're golden?
Still, finding a place to send the remaining non-dangerous detainees will be hard; options have narrowed. But... you just said the administration had found a place for the 54/100 or so of them? So confused...But we have agreed that the non-dangerous people can go to where the administration has found places for them, yes?
The biggest problem is a group of up to 68 higher-risk detainees. Oh, you've moved on.
The men in this category, the president explained, “received extensive explosives training at al-Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.” Yes, sadly, such people do not seem to be in short supply, despite our continued efforts to short the supply. Strange that. The OMICTTWTKA category is a bit troubling, at least to me. Perhaps you've answered your own question?
Guantanamo cannot and should not be closed until there is a concrete plan to prosecute these men... Great! That works for me. Oh, you've not finished.
or, if necessary, detain them in a lawful way that ensures they can never inflict grievous harm again. But, isn't that what we call "convicting them and throwing them in jail"? So you're with me?
Federal courts have ruled that these detainees can be lawfully held until the end of the relevant conflict, whenever that might be. So they're POWs then? Yes? No? You're not going to say, I'll bet.
But many cannot be criminally prosecuted because of evidence tainted by abusive interrogations, limitations in federal criminal law and other problems of fitting the demanding standards of criminal justice to the messiness of the terrorist battlefield. You didn't say. Darn those pesky "limitations of federal criminal law" and the roadblocks they put in place for criminally prosecuting people at the federal level! Also, isn't the "Oh noes! We tortured them and now they're stuck in legal limbo, whatever can we do? Fiddlesticks." point kind of embarrassing to make? Don't answer that. And, oh, the messiness, yes that does seem insurmountable for most mere mortals, but not if you have scores of lawyers!
Scores of lawyers in two administrations have scoured the case files and case law and (reluctantly) agree. Sh1t. So, we have to let them go?
What to do? Hey that's my question, you're writing the Op-Ed!
Closing Guantanamo must not mean ending detention of these dangerous men, though the two are often confused. Well it's a confusing sentence, who can blame, uh, those who are doing the confusing who shall not be named in this Op-Ed (if that's even they're real name....)
The legislation needed to bring Guantanamo detainees to the United States could supplement the military rationale for holding non-prosecutable — but very dangerous — But how do we know if we don't prosecute? Seriously, I'm asking, how are-- you're going to skip right over that aren't you?
terrorists with a form of administrative detention akin to civil commitment, one that could apply after the end of the relevant hostilities. I knew it! But, crucifix- er, administrative detention/civil commitment for you then?
Such a statute could prescribe the definition of dangerousness that warrants detention, the processes for determining a continued threat to public safety over time and the standards for judicial review. Well very good. A definition of dangerousness that has constitutionally sound standards for judicial review that SCOTUS is willing uphold and police to ensure no abuse, that just might work! Or, maybe not. So, really, WTF then Jack and Jane?
This approach is, in our view, the least bad option for dealing with detainees. Keeping hardened terrorists incarcerated is essential; keeping them detained at Guantanamo Bay is untenable. The president and Congress must be partners in finding a secure solution. Ah, I should have seen this coming, let's endorse something monstrous like "administrative detention" (but for terrorists only!) as it must be okay because of...bipartisanship!
See Jack and Jane be bold and brave.
It's all rather cowardly and dispiriting. But not surprising.
Update! Via Mr. Cleek in the comments, we'll always have Chicago. But what do those damn Brits know about America anyway? They're still bitter about us kicking their arses (hah!) in the 18th Century.