link Obama planning U.S. trials for Guantanamo detainees By MATT APUZZO AND LARA JAKES JORDAN Associated Press Nov. 10, 2008, 4:— President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice. During his campaign, Obama described Guantanamo as a "sad chapter in American history" and has said generally that the U.S. legal system is equipped to handle the detainees. But he has offered few details on what he planned to do once the facility is closed. Under plans being put together in Obama's camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts. A third group of detainees — the ones whose cases are most entangled in highly classified information — might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans aren't final. The move would be a sharp deviation from the Bush administration, which established military tribunals to prosecute detainees at the Navy base in Cuba and strongly opposes bringing prisoners to the United States. Obama's Republican challenger, John McCain, had also pledged to close Guantanamo. But McCain opposed criminal trials, saying the Bush administration's tribunals should continue on U.S. soil. The plan being developed by Obama's team has been championed by legal scholars from both political parties. But it is almost certain to face opposition from Republicans who oppose bringing terrorism suspects to the U.S. and from Democrats who oppose creating a new court system with fewer rights for detainees. Laurence Tribe, a Harvard law professor and Obama legal adviser, said discussions about plans for Guantanamo had been "theoretical" before the election but would quickly become very focused because closing the prison is a top priority. Bringing the detainees to the United States will be controversial, he said, but could be accomplished. "I think the answer is going to be, they can be as securely guarded on U.S. soil as anywhere else," Tribe said. "We can't put people in a dungeon forever without processing whether they deserve to be there." The tougher challenge will be allaying fears by Democrats who believe the Bush administration's military commissions were a farce and dislike the idea of giving detainees anything less than the full constitutional rights normally enjoyed by everyone on U.S. soil. "There would be concern about establishing a completely new system," said Rep. Adam Schiff, D-Calif., a member of the House Judiciary Committee and former federal prosecutor who is aware of the discussions in the Obama camp. "And in the sense that establishing a regimen of detention that includes American citizens and foreign nationals that takes place on U.S. soil and departs from the criminal justice system — trying to establish that would be very difficult." Obama has said the civilian and military court-martial systems provide "a framework for dealing with the terrorists," and Tribe said the administration would look to those venues before creating a new legal system. But discussions of what a new system would look like have already started. "It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts," Tribe said. "It will have to both be and appear to be fundamentally fair in light of the circumstances. I think people are going to give an Obama administration the benefit of the doubt in that regard." Though a hybrid court may be unpopular, other advisers and Democrats involved in the Guantanamo Bay discussions say Obama has few other options. Prosecuting all detainees in federal courts raises a host of problems. Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics. In theory, Obama could try to transplant the Bush administration's military commission system from Guantanamo Bay to a U.S. prison. But Tribe said, and other advisers agreed, that was "a nonstarter." With lax evidence rules and intense secrecy, the military commissions have been criticized by human rights groups, defense attorneys and even some military prosecutors who quit the process in protest. "I don't think we need to completely reinvent the wheel, but we need a better tribunal process that is more transparent," Schiff said. That means something different would need to be done if detainees couldn't be released or prosecuted in traditional courts. Exactly what that something would look like remains unclear. According to three advisers participating in the process, Obama is expected to propose a new court system, appointing a committee to decide how such a court would operate. Some detainees likely would be returned to the countries where they were first captured for further detention or rehabilitation. The rest could probably be prosecuted in U.S. criminal courts, one adviser said. All spoke on condition of anonymity to discuss the ongoing talks, which have been private. Whatever form it takes, Tribe said he expects Obama to move quickly. "In reality and symbolically, the idea that we have people in legal black holes is an extremely serious black mark," Tribe said. "It has to be dealt with."
I'm glad, but I'm nervous about it. Bush left Obama an abominable mess with Guantanamo. Only bad things can come of it regardless of what Obama does.
Upholding the Constitution and the founding principles of our Democracy are just what a Marxist-socialist-radical Muslim-terrorist would do.
Agreed. I think closing Gitmo is a nice symbolic move, but it's not necessary, and it opens up a new can of worms. The right thing to do is admit that they are all prisoners of war, reclassify Gitmo as a POW camp, abide by Geneva protocols, and try them as war criminals. Punish the ones that are found guilty and ship the rest back to wherever they came from. I really don't like the idea of a "new" trial process. We've had 8 years (actually much longer than that) of Administrations making up their justice procedures as they've went along. Another 4 would be just as bad, if not worse.
how does it work in normal war, we take prisoners, we release them when the war is over? what would be a crime for a prisoner of a normal war. is just being an enemy combatant a crime? there has to be some sort of system for people picked up in the normal course of the war on terror who aren't us citizens.
Let's lay down the markers now... If there is no reason to hold them, let them go. If, after being incarcerated and tortured under the Bush administration, they go out and commit violence against the US or our allies, that blood is on Bush's hands, not Obama's... no matter how much the wingers scream. I can see a more likely scenario of one of those ultimately released being somewhere close to something or someone's cousin or seen somewhere by intelligence sources that only talk to Neo-cons... and the Obama-haters coming after him with stuff that would make Willie Horton look like child's play. Again, if we're holding people illegally and if we've tortured them and they come back and do us harm, that is on Bush... in a big way.
I'm not worried about them breaking loose and murdering my family or anything. I'm worried about: (1) There are guys who've rotted Guantanamo for a half-decade or more who didn't do much to prosecute. So, if justice prevails, they will be released. But, they will be (justifiably) pissed off. (2) If they are tried in a regular court, there will be concerns about the security of national intelligence. If they are tried in a military court, there will be concerns about justice. If they are tried in a hybrid, there will be concerns about constitutionality. In the last case, I can see legal challenges resulting in the release on Constitutional grounds of people who should be in prison. In the first case, I can see the unwillingness to bring classified evidence have the same effect. And, I can see the use of military courts or hybrid courts on US soil being ruled out. (3) I think it will be a national embarassment when the world gets renewed attention and greater transparency into what we were doing in Gitmo. I think that needs to happen, but it won't be pleasant. (4) I think impeachments and prosecutions will probably be in order for some Gitmo-related activity, but I doubt the will to do so will be there. So, we'll be stuck in some untenable political position of revealing past misdeeds without doing anything to render justice. (5) More uneasiness that I haven't quantified yet.
We usually don't just release them. We return them to their home country and let them decide what they want to do with them. Torturing prisoners or targeting civilians are examples of things that can be considered a war crime.
If some are released and then go on to do bad things you really can't pin it on Bush. There's no way to tell whether or not they'd have done those actions regardless. Not to say someone who was an innocent bystander wouldn't justifiably be pissed off, but claiming casuality is haphazard at best. It should also be noted that I don't think there are many, if any, of the guys left who are 'innocent bystanders.' I'd be perfectly happy repatriating these guys to their own countries. Unless they're Syrians or Iranians. The worst solution would be to try them in US courts. Let them fade into the sunset.
