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January 13, 2009


A two-tier legal system.

Ever-expanding use of the loosened procedures for unrelated crimes, as has happened in every single previous example of supposedly "special cases" (organized crime, drugs, child abuse, child pornography, pre-2001 terrorism, kidnaping...).

We're already significantly less free and less safe because the response to the attacks was, for base political reasons, formulated as a "war on terror." To have the incoming administration adopt the same arguments and the same framework is sickening.

Hil, let me suggest that you link Chambers v. Florida and Brown v. Mississippi in the paragraph denoted (1).

Rochin is also worth reading. One thing that is striking about all three decisions -- from which the law is clear that a coerced confession isn't admissible, even if it's true -- is that they are not focussed so much on the rights of the criminal, but on a different key question: what are the minimum standards for the conduct of a civilized society. These same concerns apply now, of course, and it's no answer at all that these people have been hidden away outside the United States proper, or that they aren't citizens.

Wittes pointed to Mohamed Al Qahtani, a Guantánamo detainee, as the paradigmatic profile of an individual whose legitimate prosecution may be fatally compromised by coercive treatment, but whose release would pose too great a menace to Americans.

This is just nuts. One guy? One guy, presents "too great a menace to Americans"? Seriously? Are we that afraid these days? As Hilzoy notes, we release guilty people all the time, and yet somehow, life goes on.

Seriously, charge these fnckers or release them. It really ain't that hard.

The excessively broad terrorism statutes will be quickly amended as soon as they are used against queer-bashers.

Cynical, yes. But you know it's true.

There may or may not need to be a different system for contemporary terrorists, but if there were such a need it would be based on the security/intelligence concerns of how we caught them, or the revelation that they were caught immediately hampering other investigations.

Neither concern is likely to be true today of these men.

For Mohamed Al Qahtani and others like him, try him in Federal court. If he's that dangerous, this will tie him up for another year or two. If he's not convicted, he still has to be deported and it will take some time to find a place that will accept him.

And how dangerous is he going to be when everyone will know the CIA is doing everythng they can to track him and probably kill him. I'm sure he'll have a lot of friends.

when everyone will know the CIA is doing everythng they can to track him and probably kill him

I'd like to go on record in opposition to the CIA, or any other operatives of the U.S. government, conducting assassinations. Period.

And right on cue, the Pentagon says the "returned to the battlefield" rate of people released from Gittmo is up.

How about disbanding all 'intelligence operations', all 16 or whatever agencies?

How in the hell did we get into this spy crap? Was it really just a slippery slope of WWII with those dashing Ivy League swashbucklers?

Seriously, why are we in this business? What good has it done? These people didn't even know that the Soviet Union was going to breakup.

Extraordinary rendition. Enhanced interrogation. Unlawful combatants. The battlefield. Nonsense.

Wikipedia has an entry on the claims that people released from Guantanamo have "returned to the battlefield." There isn't a lot of clarity on the issue because the claims of the U.S. government have proved to be unreliable. What I don't see is any basis for believing that releasing people from Guantanamo has signficantly affected America's national security.

"How about disbanding all 'intelligence operations', all 16 or whatever agencies?"

Covert operations, and analysis of information, are two entirely different things, for the most part.

We don't want to get out of the business of obtaining and analyzing information.

Good post, Hilzoy, I agree.

The Salon article you linked to points out that it is reasonably easy to convict anyone found on a battlefield for, at least, providing material support to terrorism (18 U.S.C. 2339A). Lindh got 20 years for that, so it's not like the penalties are insufficiently harsh.

I still think the military justice system, at least the way it was before Bush began mucking around with it, is a better fit for this sort of crime, and we should use it when "major combat operations" resume in Afghanistan, or in future military strikes elsewhere. We may or may not need to streamline that system in some way, depending primarily on how many prisoners we're talking about, and we should definitely begin revising the military tribunal system NOW if we are going to at all.

The military/civilian system is already "a two-tier justice system," and that's actually a very good thing. The civilian criminal system would have been set up quite differently if one of its primary jobs were to incapacitate enemy soldiers or guerillas. If we try to process battlefield cases in the civilian courts on any regular basis, overzealous legislators, judges and prosecutors will further erode our rights. A lot of the least appealing aspects of our current criminal system -- three-strikes, property forfeiture, expanded conspiracy definitions, huge sentence enhancements, and all sorts of end-runs around the 4th and 6th Amendments -- are the result of the War on Drugs. Imagine what our system will look like after laws and practices created for terrorism cases are applied to everyone.

But 15, or even a hundred, prisoners won't break the system, and after holding them in dungeons for years we owe them all the protections our system can muster.

What all of this comes back to - repetitively - is whether Obama is going to condone, or prosecute, the crimes of the Bush administration.

Acknowledging that how the Bush adminstration has treated these prisoners is criminal - not only the ones in Guantanamo Bay, but the thousands in Iraq and Afghanistan and other gulags round the world - means they can be released, or tried in a court of law, to be convicted or acquitted.

But if Obama acknowledges that the Bush administration, from Bush and Cheney downwards, have committed crimes... but he won't support their being prosecuted?

Creating a two-tier justice system, and focussing only on the Guantanamo Bay prisoners, avoids that problem, and lets Obama act as if there was nothing wrong with extra-judicial imprisonment, torture, and murder, when the President orders it.

There may or may not need to be a different system for contemporary terrorists, but if there were such a need it would be based on the security/intelligence concerns of how we caught them, or the revelation that they were caught immediately hampering other investigations.

How would that be any different from investigations into organized crime? In general, why would **ANY** trial for terrorism be different than the way we try dangerous groups (like gangs or the Mafia) today?

We have already held people without trial for seven years. Their children have grown up without them. We need to bring them to trial quickly or let them go.

Even if Gitmo is closed tomorrow, there will still be thousands of detainees held by US forces for whom the above sentiment holds perfectly true.

Oh, most of the almost 19,000 or so "detainees" we hold in Iraq have only been in custody for four years or so. Not nearly so bad.


The "returned to the battlefield" meme has a certain ring of probability to it, although "return" might be incorrect. Given the way the 'detainees' were treated, I'd be very surprised, if none of the innocent ones was turned into a potential terrorist. Some might be too broken for that but a lust for revenge would be a completely understandable reaction.
But to use that as a justification to detain them for life (likely to be short) is highly cynical.

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