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Saturday, Jul 11, 2009
President-elect Obama has pledged to close the infamous military prison in Cuba. So why are people trying to give him the right to start all over again?
By Jameel Jaffer and Ben Wizner
Read more: George W. Bush, Terrorism, Opinion, Torture, Barack Obama, Ben Wizner, Jameel Jaffer
Reuters/Janet Hamlin/Pool
A courtroom drawing by artist Janet Hamlin, reviewed by the U.S. military, shows Khalid Sheikh Mohammed (top) and co-defendants Walid bin Attash (2nd from top) and Ramzi Binalshibh (left) attending a pretrial session in Guantánamo Bay, Dec. 8, 2008.
Dec. 9, 2008 | On Monday, the circus known as "Guantánamo justice" devolved once again into chaos, with alleged 9/11 mastermind Khalid Sheikh Mohammed raising the possibility that he and other prisoners once held by the CIA would plead guilty to involvement in the 9/11 attacks. The anarchic proceedings only served to underscore the makeshift nature of the military tribunals, and to remind the world of the reasons the prison should be closed.
But even as President-elect Obama repeats his oft-made promise to shutter the prison that has so besmirched the nation's reputation, some legal experts, and not just those on the right, are talking about giving him the right to open a new Gitmo here at home. An extraordinary debate is under way about whether Congress should expressly authorize the new president to do what the outgoing president did on his own claimed authority: imprison alleged terrorists without charge or trial.
It may surprise some to learn that in the waning days of the Bush administration, there is an emerging narrative in Washington think-tank circles -- a narrative that shows signs of congealing into "bipartisan consensus" -- that Congress should enact a law that expressly permits such detention. What underlies the consensus is the theory that our criminal justice system is unequal to the task of detaining terrorists in a dangerous world. The impetus for this discussion is the likelihood that an Obama administration will, in fact, move to close Guantánamo, and its urgency is supplied by the claim that among the 250 prisoners still imprisoned there are many who are too dangerous to release, but too difficult to prosecute. Accordingly, the argument goes, unless Congress devises a new legal framework for detaining terrorism suspects for preventive purposes, the closing of Guantánamo means that hordes of terrorists will be released to carry on their war against America.
Proponents of a new detention-without-trial regime contend that there are a sizable number of detainees at Guantánamo whose release would pose an unacceptable risk, but whose prosecution in our traditional criminal justice system would face insurmountable obstacles. For example, Matthew Waxman, who held senior positions in both the State and Defense Departments under President Bush and now teaches at Columbia Law School, states that "criminal prosecutions [of Guantánamo detainees] should be carried out whenever possible," but insists that "the evidence against a particular suspect often can't be presented in open civilian court without compromising intelligence sources and methods," and furthermore, that "the evidence may not be admissible under U.S. criminal law rules." Benjamin Wittes, a Brookings Institution scholar and author of "Law and the Long War," which advocates a new detention regime, is more blunt in explaining why some terrorism suspects cannot be criminally prosecuted: "because they have not committed crimes cognizable under American law, because evidence against them was collected in the rough and tumble of warfare and would be excluded under various evidentiary rules, or because the evidence is tainted by coercion." For those reasons, Wittes contends, Congress must move quickly to enact a law that would authorize the long-term detention without trial of suspected terrorists, following some kind of judicial process to assess the dangerousness of the detainee.
These claims concerning the shortcomings of the traditional criminal justice system can be considered in turn. Is there evidence that the existing system has proven inadequate to the prosecution of dangerous terrorists? Is it true that convictions could not be obtained against these detainees "without compromising intelligence sources and methods"? Finally, is it true that the evidence needed to obtain their convictions might be inadmissible in a U.S. federal court?
Although the debate about these issues has largely been driven by Guantánamo, the detention, interrogation and prosecution of terrorism suspects by the United States did not begin with the Sept. 11 attacks. The United States has captured and successfully prosecuted scores of terrorism suspects, at home and abroad, both before and after Sept. 11, and any serious debate about the adequacy of the criminal justice system to handle these cases must begin not with the abstract concerns of scholars, but with the actual experiences of prosecutors.
Fortunately, much of this work has been done in a comprehensive and authoritative report published by Human Rights First and written by Richard Zabel and James Benjamin, both former federal prosecutors. The report, "In Pursuit of Justice," examines more than a hundred international terrorism cases that were prosecuted in U.S. federal courts, and concludes that those courts are well-equipped to accommodate the government's legitimate national security interests without compromising the fundamental rights of criminal defendants. Federal prosecutors have an imposing array of prosecutorial weapons for targeting suspected terrorists, including statutes that criminalize assault and homicide, the use of weapons of mass destruction, and harboring or concealing terrorists.
Of the many statutes that prosecutors have employed against suspected terrorists, perhaps the most far-reaching are those that criminalize the provision of "material support" to organizations that have engaged in terrorism or have been designated as terrorist organizations. These statutes allow the government to secure convictions without having to show that the defendant actually intended to further terrorism, and indeed without having to show that any specific act of terrorism has taken place or is being planned. Thus, in recent years, defendants have been convicted of material support for attending terrorist training camps, for giving medical aid to injured fighters, and for supplying funds for the humanitarian activities of designated terrorist groups. In fact, the material support laws are so sweeping that they have been criticized for criminalizing conduct that is protected by the First Amendment. (In one pending case in New York, the government is prosecuting a man whose "material support" consisted of rebroadcasting a Hezbollah television station in Brooklyn, N.Y.) But while one can fairly criticize the material support laws for criminalizing too much conduct, it would be difficult to criticize them for criminalizing too little. Given the vast sweep of those laws, it is hard to imagine that Guantánamo holds any substantial number of men who are simultaneously impossible to prosecute and yet too dangerous to release.
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