Obama’s Dilemna

Posted by AzBlueMeanie:

Civil libertarians and liberals are upset with that portion of President Obama's speech on Thursday in which he outlined how he presently plans to deal with the detainees at Guantanamo. This has become a regular feature on programs such as MSNBC's Countdown and Rachel Maddow Show. Keep in mind that a final plan is yet to be submitted to Congress, so the contours of the final plan may differ from this outline Text – Obama’s Speech on National Security:

Now, going forward, these cases will fall into five distinct categories.

First, whenever feasible, we will try those who have violated American criminal laws in federal courts — courts provided for by the United States Constitution…

The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war…

The third category of detainees includes those who have been ordered released by the courts… The courts have spoken.

The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved 50 detainees for transfer. And my administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people… We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.

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But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Civil libertarians and liberals object to the use of the Military Commissions Act of 2006, and to the "prolonged detention" of those who cannot be tried. I agree with their legal analysis, but some explanation of the real-world political risks involved help to explain Obama's dilemna.

The fact of the matter is, the Bush administration entirely f#@ked this up from the very beginning. Rather than their questionable end-runs around the law to classify prisoners as "enemy combatants" and to suspend the Geneva Conventions, the individuals taken into custody on the battlefield in Afghanistan should have been afforded prisoner of war status under the Geneva Conventions and treated accordingly. Had Bush followed the precedent set by his predecessors in office, much of this problem would have been avoided.

It was the Bush-Cheney desire to evade the law at every turn by creating a legal limbo where prisoners had no legal rights, the American court system would have no legal jursidiction (to preclude habeas corpus), and prisoners could be tortured in some Jack Bauer "24" fantasy camp which created the legal nightmare that is Guantanamo.

Obama is correct about the history of military commissions, with the caveat that the use of military commissions to try "enemy combatants" is generally limited to the purpose of dealing with "enemy combatants" who have violated the rules of war in an active war zone. The abuse of military commissions during and after the Civil War led the U.S. Supreme Court in Ex Parte Milligan, 71 U.S. 2 (1866) to rule unanimously that military commissions used to try civilians in any jurisdiction where the civil courts were functioning were unconstitutional. The one departure from this long-standing rule was FDR's decision to prosecute eight German saboteurs during World War II by military commission, which was upheld by the U.S. Supreme Court in Ex Parte Quinn (this is the same court that also upheld the internment of Japanese-American citizens during the war).

Arguably, for prisoners who are held at Guantanamo many thousands of miles away from any war zone, some of whom have been held for as long as almost seven years, the exigent circumstances which exist in a war zone that might justify the use of a military commission no longer exist.

Obama wants to substantially amend the Military Commissions Act of 2006, as he indicated in his speech. However, I agree with civil libertarians that the act is both unnecessary and should be repealed. For traditional application of military commissions in an active war zone, the Uniform Code of Military Justice (UCMJ) has proven to be sufficient. America does not need nor should it ever desire an extra-constitutional system of military justice to supplant our constitutional system of justice.

The most vexing category of prisoners are those who "cannot be prosecuted" but pose a clear danger to the American people. "Why can't these prisoners be prosecuted" you ask? As Obama explained, it is because in some cases the "evidence may be tainted."

What Obama is alluding to is the Fruit of the poisonous tree doctrine, i.e., evidence gathered with the aid of information obtained illegally — in this case, most probably by means of illegal torture. If the source of the evidence (the "tree") is tainted, then anything gained from it (the "fruit") is as well. Such evidence is generally inadmissible in court.

The alleged mastermind of the 9/11 attacks, Khalid Sheik Mohammed, was waterboarded at least 183 times, and the man whose information led to KSM (by standard FBI interrogation methods), Abu Zubaydah, was later waterboarded at least 83 times. It is unknown how many other prisoners may have been subjected to illegal torture, complicating any prosecutions of prisoners based upon information obtained illegally.

If KSM cannot be brought to justice at trial, it will be the direct result of the illegal Bush-Cheney torture program. Bush and Cheney are ultimately responsible for any such miscarriage of justice. Let them explain to the surviving family members of the victims of 9/11 that KSM could not be brought to justice because their own illegal conduct poisoned the evidence against him and precluded any prosecution.

There is nothing in the Anglo-American system of justice which would permit the indefinite prolonged detention or "preventive detention" of a prisoner without charges being filed or trial. The ancient right of habeas corpus has existed since the Magna Carta. Prolonged detention or "preventive detention" is completely contrary to our values and system of justice.

Obama said "If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight" and "develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

Obama appears to be saying that he conceives any detention will be limited in time to the period of active war. But this is problematic, as Obama himself acknowledged in his speech. This is not your typical war in which there will be a formal surrender and cessation of hostiliities. And these prisoners have not been afforded prisoner of war status under the Geneva Conventions, which would allow the U.S. to hold them until the end of hostilities. Detaining these prisoners for a prolonged period of time without charges filed or trial is completely contrary to our values and system of justice.

I cannot conceive of any circumstances under which indefinite prolonged detention or "preventive detention" could ever be consistent with the Constitution and consistent with our Anglo-American values and system of justice.

I do understand Obama's dilemna — he does not want to release someone like KSM to kill again. But his options are limited.

Obama could give these prisoners prisoner of war status under the Geneva Conventions (even though some individuals may not qualify). He does not want to do this because those prisoners who were tortured would have legal rights to pursue their torturers — including those who authorized and ordered such torture — on war crimes charges, and the U.S. for civil damages. A German citizen who was kidnapped and tortured by the CIA is aleady pursuing criminal charges against the CIA in Germany. Obama wants to avoid the spectacle of these prisoners pursuing war crimes charges against Bush, Cheney and other administration officials. He is actually protecting the Bush administration from prosecution.

The best solution would be to deport these prisoners to their country of origin or capture, where the legal protections under American law likely do not exist. If Afghanistan had a functioning government with secure prisons, that would ideally be a solution. But Afghanistan is neither functioning nor secure, so it is not a viable option.

For those few prisoners who cannot be prosecuted, the day will eventually come when the U.S. has to release them from custody, likely as a result of a court order (as other prisoners have already been ordered released by the courts). Obama is trying to delay the inevitability of that day.

The Constitution and our Anglo-American system of justice does not exist for the convenience of the exercise of government power, but rather to protect the rights of individuals from the abuse of the arbitrary exercise of government power. If there is insufficient evidence to charge a prisoner or to try him, then the prisoner must be released. Americans understand this concept instinctively. It is a moral value choice made long ago in our Anglo-American system of justice. English Jurist William Blackstone said, "Better that ten guilty persons escape than that one innocent suffer." We choose to live with the consequences.

Obama should not continue the errors of the Bush-Cheney administration, but do what he knows to be right as a constitutional law attorney. Justice wears a blindfold because she does not consider the status of the persons before the court or take into consideration politics. This is how Obama needs to address this issue.