Yes, what should America do with its high-risk detainees?

by Ugh

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.  

Comments

[Slartibartfast]

The "underlying perversion", as it were, is a horse that left the barn long ago. The problem is what to do now.

Yes, indeed. An emphatic WRS.

[Donald johnson]

I read your NYT links, sapient. Thanks--it was interesting. It didn't, of course, change my view of the basic unfairness in a system which doesn't allow foreign victims of our policies to sue for damages, while allowing the PA to be sued. I agree it will be hard to collect and that it complicates US foreign policy, though in this case US policy has been at best feckless.

On the subject of the post, I agree with Thompson.

[sapient]

It didn't, of course, change my view of the basic unfairness in a system which doesn't allow foreign victims of our policies to sue for damages, while allowing the PA to be sued.

You do, of course, understand that the U.S. Code isn't an integral body of law, in the sense that Congress (even in the best of times) says, "Well, Act 315 of the 1932 legislature decided this; therefore, it would be totally unfair for the 1992 legislature to decide that!"

In other words, life isn't fair, and the best Congresspeople do the best they can, and a lot of legislation is passed piecemeal, in reaction to certain stuff that's going on, without much attention to what went on in the olden days.

There are legislative research people who try to help with that, but it's difficult, because Congress reacts to constituents, not to a scholarly mandate to make the law exact in balancing this person's rights versus that person's rights.

So, while some stuff seems unfair, and maybe is, so what? Who cares who sues whom for what, especially since nobody wins anything? I prefer to focus my outrage elsewhere. Like at John Boehner for inviting Netanyahu to speak. Or, much more, at ISIS for trying to destroy the (already ethnically scarce, because of attempted genocides) Assyrians and their art. These people are thugs, and I could be outraged at them full-time. Don't need to pick nits from a fairly reasonable system of government (on the whole, except for the horrible people currently running Congress). There are way bigger fish to fry, IMO, outragej-wise.

[sapient]

Don't need to pick nits from a fairly reasonable system of government (on the whole, except for the horrible people currently running Congress). There are way bigger fish to fry, IMO, outrage[j]-wise.

Which isn't to say that people shouldn't complain. Of course there's stuff to complain about. But the judicial system in the way it treats people seeking tort claims from governments? That's, perhaps, 3216 on my list.

[Hartmut]

Let's be honest. How many of us would be pretty pissed after years in the legal limbo that are Guantanamo and the other bases and black sites abroad and very much inclined to take revenge for it? I guess a non-negligible number. Occasionally this is even named as an important reason not to let anyone out. "They may have been innocent and with no evil feelings towards us but after what we did to them they will want our blood (because we would in their position), so for our own safety we can't let them go".
Of course there are still those that say "When they get out they will..the horror..tell what we did to them to the world and we can't have that." (and some will add "it's all lies anyway. Gitmo is in essence a luxury tropical resort and those ragheads have never lived better in their whole life given from what hellholes we liberated them").
We could sent them to space of course to build a moonbase. The first Mars trip is reserved for some presentable citizen not foreign bearded riffraff.

[Donald johnson]

I don't have a problem despising ISIS as a genocidal group and also despising much of US foreign policy. Plenty of victims in both cases. Surviving Palestinians whose families were blown up in their homes last summer might see my point, as would many millions of other people around the world.

If you want to talk about what to do with ISIS, I don't have any good ideas, but giving air support to the Kurds and other locals seems like a defensible idea to me. On this particular issue I don't have much to criticize in Obama's policy--I haven't seen any obviously better ideas, though maybe they exist.

[sapient]

How many of us would be pretty pissed after years in the legal limbo that are Guantanamo and the other bases and black sites abroad and very much inclined to take revenge for it?

Or maybe we/they would have Stockholm syndrome. Our responsibility is not to psychoanalyze them, but to do what's right, finally. And that doesn't mean letting them go, necessarily. If we can find untainted evidence against some of those people, we should absolutely try and punish them. But holding them there because we were screw-ups is not acceptable. Hoping for change from the new Sec of Def.

[Hartmut]

I do not disagree with you, sapient. But it is a real fear felt by the politicians that releasing even the 'originally innocent' will blow up in their faces because some of them will have become potential terrorists through the treatment they got. And any act by a person released will be used by their opponents to smear them for letting the sealed evil out of the can.
It's the same dilemma with 'normal' prisons too. Unjust incarceration is likely to turn innocent people into criminals (and be it just for being labeled as ex-convicts when they get out leading to them being unable to get back to a normal life) and petty criminals into hardened ones (lots of qualified trainers for that inside). Not to forget the brutal social-Darwinist environment even in the prisons of civilized countries (and in this context the US are imo anything but civilized).
Cf. Willie Horton, Wayne DuMond and Revolving Door for how the topic has been used to attack political candidates (on the left and right).
For politicians it is a lose-lose scenario standing up for what is right and just. To my knowledge no (US) political candidate has yet lost an election for the execution of an innocent or even wrongful incarceration. I only know of one judge who got condemned for a deal with a prison company that payed him for 'keeping their beds filled' with youngsters for years. And even that was iirc for the corruption not for sending the innocent to prison (or at least disproportionate sentencing).
What's imo even worse is that there are many who will respect a candidate even more when they learn that he (rarely a she) is so skilled as to get innocents (that he knows are innocent) convicted. At least as long as it is 'them' not 'us' that become the victims.
As long as this equation does not change, justice will always be at an disadvantage.