Closing Guantanamo: Part 2

by hilzoy

From the AP story on closing Guantanamo:

"What remains the thorniest issue for Obama, the advisers said, is what to do with the rest of the prisoners — including at least 15 so-called "high value detainees" considered among the most dangerous there.

Detainees held on U.S. soil would have certain legal rights that they were not entitled to while imprisoned in Cuba. It's also not clear if they would face trial through the current military tribunal system, or in federal civilian courts, or though a to-be-developed legal system that would mark a hybrid of the two."

I think that designing a new "hybrid" legal system would be a big, big mistake. Some of the reasons are practical. For instance, the system of military commissions has been litigated for years, which is one reason why so few people have been tried under it. Any new system would be challenged in court as well. If we try detainees under an existing system of law, we can be pretty sure that most of the constitutional questions it raises have been worked out. If we build a new system, we can be equally sure that we'd have to wade through years of legal challenges before anyone actually got to be tried under it. 

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. The delays inherent in constructing a whole new system of justice would, under the circumstances, be unconscionable.

More importantly: the time to construct a new system is when events reveal the need for one. That is not the case here. We have not suddenly discovered that there is some gap in our existing system of justice that only a new, alternative system will fill. Rather, there are people we want to detain and might not be able to detain under the existing system, in large part because those clever people in the Bush administration decided to torture them. Jameel Jaffer and Ben Wizner in Salon (h/t Glenn Greenwald), discussing an argument by Benjamin Wittes:

"Wittes is more candid than many other advocates of expanded detention authority in explicitly revealing a major source of his concern: that the evidence necessary to obtain convictions against some terrorism suspects is "tainted by coercion" and thus inadmissible in U.S. federal courts. In congressional testimony and in a recent Washington Post article, 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. (...)

Assuming, as Wittes does, that there is no evidence of Qahtani's involvement in criminal conduct that is untainted by the government's criminal conduct toward him -- something that is by no means clear -- his case squarely presents the question whether we are prepared to change our laws in order to avoid the consequences of the Bush administration's criminal embrace of torture. Wittes' argument can be summarized succinctly as follows: 1) We brutally tortured Qahtani; 2) thus, our evidence of his criminality is "tainted," rendering his prosecution impracticable; 3) therefore, we must amend our laws to allow for Qahtani's indefinite detention without charge or trial."

This is a terrible reason to create an alternative legal system. A legal system is not a one-off thing. It goes on existing after the particular cases that prompted its creation have been settled. This proposed legal system would be created to allow the prosecution and conviction of people based on evidence gained through torture. There are at least two huge problems with doing this:

(1) Evidence gained through torture is unreliable. That's one reason we don't rely on it to begin with. If there is not enough evidence to convict someone once we eliminate evidence gained through torture, then there is not enough good evidence to convict him, period.

(2) One of the ways in which we protect ourselves from torture is by making it clear that evidence gained through torture is inadmissible in court. Creating an alternative legal system in which such evidence was admissible would create horrible incentives for law enforcement. This is particularly true since many terrorism statutes are broadly written. Consider this case:

"For the past three years, a 24-year-old construction worker named Edgar Morales has been in jail, awaiting trial on murder and terrorism charges that could send him to prison for life. Mr. Morales, however, does not belong to Al Qaeda or Hamas.
Instead, prosecutors say, he is a member of the St. James Boys, a group of recreational soccer players who formed a street gang that terrorized the Mexican and Mexican-American population of the west Bronx for several years and killed a 10-year-old girl in 2002. (...)

The Bronx district attorney, Robert T. Johnson, says the law is an apt tool in his effort to prosecute violent street gangs.

"The obvious need of this statute is to protect society against acts of political terror," Mr. Johnson said in a statement. "However, the terror perpetrated by gangs, which all too often occurs on the streets of New York, also fits squarely within the scope of this statute.""

This case concerns a state statute, but the relevant part of it -- defining terrorism as acts that violate the law and are intended to "intimidate or coerce a civilian population" -- is also found in federal law. This means that a lot could count as terrorism in the hands of a creative prosecutor, and if, in all such cases, an alternate legal system was available in which evidence gained through torture was admissible, that would have huge implications.

This point applies more broadly. Whatever form a novel legal system takes, if it is designed to deal with Guantanamo detainees, it will almost certainly be designed to make it easier to convict people. Before constructing such a system, we need to ask ourselves whether we want prosecutors to have, in a range of cases that is certainly broader than what we normally think of as terrorism, the option of using an alternate system designed to make it easier to convict, and to do so when the government has not been playing by what used to be the rules. 

I think it's a terrible idea. We have an accepted way of dealing with people whom we do not have enough untainted evidence to convict: we release them. Some of the people we release are guilty, and some are very dangerous: mafia bosses, murderers, rapists, people who beat up their spouses or molest their children. We have always thought that maintaining our commitment to the rule of law meant that despite these dangers, we should not lock people up if we don't have evidence against them that's admissible in court. That's what decent societies do.

It would be a tragedy if we abandoned that commitment.

***

UPDATE: This is also by hilzoy. And yes, I did sign in as me, quite deliberately, before starting it. Sigh.

Comments

[Nell]

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.

[CharleyCarp]

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

[CharleyCarp]

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.

[Ugh]

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.

[togolosh]

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.

[Sebastian]

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.

[tomeck]

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.

[Nell]

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.

[Ugh]

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

[Porcupine_Pal]

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.

[Kenneth Almquist]

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.

[Gary Farber]

"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.

[The Crafty Trilobite]

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.

[Jesurgislac]

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.

[Jeff]

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?

[MikeF]

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.

[Gary Farber]

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.

:-(

[Hartmut]

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.