Obama planning US trials for Guantanamo detainees

[SF_BHT]

I Guess he is the fastest speed reader in the world. BHO is planning on bringing all the GITMO children into the US and giving them all the rights and protections as you and me. He is also going to set up a new Justice system for the National Security special cases. I wonder what the Supreme court will have to say about this. Does this Idiot know that kind of box he is opening? Even if convicted.. would you want to unleash these guys into our prison system to start to learn and interact with our gangs. God help us if they started to convert some of our well established gang types and they then spread JIHAD with a twist.

Obama planning US trials for Guantanamo detainees

By MATT APUZZO and LARA JAKES JORDAN, Associated Press


WASHINGTON – 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."

[Teacher]

Ok I have a question about this for those of you with more knowledge of the law than I. Rush brought this up the other day and asked the question "What do you do with the ones who will be inevitably be acquitted under our justice system? Release them into the population?" This got me thinking what are the total legal ramifications of this? Also during a proceeding such as these would U.S. service members still be held under UCMJ? While suspected terrorists are given Constitutional rights? If this is the case then it would seem in a way that this would grant enemy combatants greater rights than servicemen. Someone please tell me I'm really wrong on this.

[Richard]

"What do you do with the ones who will be inevitably be acquitted under our justice system? Release them into the population?"
The term is deportation. I'd wager a number of these guys will have their home country justice systems awaiting their return, also.

Also during a proceeding such as these would U.S. service members still be held under UCMJ? While suspected terrorists are given Constitutional rights? If this is the case then it would seem in a way that this would grant enemy combatants greater rights than servicemen. Someone please tell me I'm really wrong on this.

IMO, you're wrong. The UCMJ's authority is predicated upon US Code, and although some of an SMs 'Constitutional rights' are abridged under the UCMJ, they aren't lost as you suggest. And like trying organized crime cases or certain espionage cases, there are a number of specialized federal courts and laws to handle such threats. I personally think Gitmo was a necessary 'stop-gap' measure which has now reached a point where our government needs to be creative and update our justice system to deal with such matters more effectively and systematically in the future--because there will be more of them.

FWIW and MOO, I personally don't listen to RL. He was very popular on AFN radio when I was at the AmEmbassy and peers were telling me how RL 'told it like it was.' I listened a couple of times and found his daily diatribes to be based primarily upon taking a snippet from the news and blowing it out of both context and proportion. Being a pol-mil advisor, I found myself disagreeing with his 'take' on the events he was citing in his program vs what I had read or knew from involvement...and haven't listened to him since.

Richard's $.02

[greenberetTFS]

Originally Posted by Richard

"What do you do with the ones who will be inevitably be acquitted under our justice system? Release them into the population?"
The term is deportation. I'd wager a number of these guys will have their home country justice systems awaiting their return, also.

Also during a proceeding such as these would U.S. service members still be held under UCMJ? While suspected terrorists are given Constitutional rights? If this is the case then it would seem in a way that this would grant enemy combatants greater rights than servicemen. Someone please tell me I'm really wrong on this.

IMO, you're wrong. The UCMJ's authority is predicated upon US Code, and although some of an SMs 'Constitutional rights' are abridged under the UCMJ, they aren't lost as you suggest. And like trying organized crime cases or certain espionage cases, there are a number of specialized federal courts and laws to handle such threats. I personally think Gitmo was a necessary 'stop-gap' measure which has now reached a point where our government needs to be creative and update our justice system to deal with such matters more effectively and systematically in the future--because there will be more of them.

FWIW and MOO, I personally don't listen to RL. He was very popular on AFN radio when I was at the AmEmbassy and peers were telling me how RL 'told it like it was.' I listened a couple of times and found his daily diatribes to be based primarily upon taking a snippet from the news and blowing it out of both context and proportion. Being a pol-mil advisor, I found myself disagreeing with his 'take' on the events he was citing in his program vs what I had read or knew from involvement...and haven't listened to him since.

Richard's $.02

I kinda have to agree with Richard, RL has lost me also. He's manipulated the news many times........

GB TFS

[afchic]

Originally Posted by SF_BHT

I Guess he is the fastest speed reader in the world. BHO is planning on bringing all the GITMO children into the US and giving them all the rights and protections as you and me. He is also going to set up a new Justice system for the National Security special cases. I wonder what the Supreme court will have to say about this. Does this Idiot know that kind of box he is opening? Even if convicted.. would you want to unleash these guys into our prison system to start to learn and interact with our gangs. God help us if they started to convert some of our well established gang types and they then spread JIHAD with a twist.

I know I am going to catch a load of heat on this one, but it won't be the first time, or the last time, so here it goes.

I personally have been saying what BHO has been for the past few years, when it comes to this subject. If we are going to be spreading democracy throughout the world because it is such a great ideology, then we should be trying these guys in our courts here in the US.

If our justice system is so screwed up that we are concerned that some of these guys are going to get off when they are truly guilty, then a)our justice system really really sucks and no one should be tried under it until it gets a complete overhaul b) if it sucks so bad why are we trying to export it to other nations throughout the world? How are we to convince others that our way is the right way if we aren't willing to put these guys on trial here? We are talking out of both sides of our mouth IMO.

Secondly, the ones that are acquitted will more than likely be deported, as Richard stated.

Finally, what makes you think that this ideology isn't already running rampant throughout our criminal justice system? From the studying I have been doing on terrorism, Islamic Fundamentalism has already infiltrated our prison system. The answer should be putting these guys in solitary confinement, if they are found guilty of their crimes.

[Richard]

Originally Posted by afchic

The answer should be putting these guys in solitary confinement, if they are found guilty of their crimes.

I'll disagree on your last point. I'm for placing them in the prison's open population...won't take long to get them 'off our books' that way.

Richard's $.02

[afchic]

Originally Posted by Richard

I'll disagree on your last point. I'm for placing them in the prison's open population...won't take long to get them 'off our books' that way.

Richard's $.02

Great point!!! My only problem with that, is then they will be touted as martyrs for their cause. Put them in solitary confinement for the rest of their lives, let them die old men, and let the world forget about them. To me that may be a worse punishment for most of them.

[The Reaper]

Originally Posted by afchic

I know I am going to catch a load of heat on this one, but it won't be the first time, or the last time, so here it goes.

I personally have been saying what BHO has been for the past few years, when it comes to this subject. If we are going to be spreading democracy throughout the world because it is such a great ideology, then we should be trying these guys in our courts here in the US.

If our justice system is so screwed up that we are concerned that some of these guys are going to get off when they are truly guilty, then a)our justice system really really sucks and no one should be tried under it until it gets a complete overhaul b) if it sucks so bad why are we trying to export it to other nations throughout the world? How are we to convince others that our way is the right way if we aren't willing to put these guys on trial here? We are talking out of both sides of our mouth IMO.

Secondly, the ones that are acquitted will more than likely be deported, as Richard stated.

Finally, what makes you think that this ideology isn't already running rampant throughout our criminal justice system? From the studying I have been doing on terrorism, Islamic Fundamentalism has already infiltrated our prison system. The answer should be putting these guys in solitary confinement, if they are found guilty of their crimes.

In my limited experience, we do not follow criminal procedures when taking prisoners or detainees in military operations.

While we have moved toward some efforts to take evidence and to maintain chain of custody, we do not Mirandize, nor provide attorneys for detainees captured during military operations as a US court of law would require.

Asking soldiers to perfom as cops and lawyers, while under fire, is going to be a pretty tall order.

The court appointed, ACLU supported attorneys are going to get killers of US soldiers off on technicalities routinely.

These people we are capturing are not (in most cases) American citizens, are religious zealots straight out of the Middle Ages, are not rehabitatable, and if released, would come right back to attack us again. They are NOT nice people.

I would not count on countries such as Libya, Yemen, Somalia, Iran, etc. to take any action against them once they are repatriated.

I would personally expect the number of detainees and prisoners to drop significantly after such a policy was implemented, and the kill count to go up.

Just my .02, YMMV.

TR

[magician]

In fact, returnees to Saudi Arabia have been routinely released.

It is just a matter of time before one of them picks up a gun again.

[kgoerz]

Originally Posted by afchic

I know I am going to catch a load of heat on this one, but it won't be the first time, or the last time, so here it goes.

I personally have been saying what BHO has been for the past few years, when it comes to this subject. If we are going to be spreading democracy throughout the world because it is such a great ideology, then we should be trying these guys in our courts here in the US.

If our justice system is so screwed up that we are concerned that some of these guys are going to get off when they are truly guilty, then a)our justice system really really sucks and no one should be tried under it until it gets a complete overhaul b) if it sucks so bad why are we trying to export it to other nations throughout the world? How are we to convince others that our way is the right way if we aren't willing to put these guys on trial here? We are talking out of both sides of our mouth IMO.

Secondly, the ones that are acquitted will more than likely be deported, as Richard stated.

Finally, what makes you think that this ideology isn't already running rampant throughout our criminal justice system? From the studying I have been doing on terrorism, Islamic Fundamentalism has already infiltrated our prison system. The answer should be putting these guys in solitary confinement, if they are found guilty of their crimes.

Your right about catching a load of S@&t....You don't shut down POW Camps and release prisoners until THE WAR IS OVER

[nmap]

Originally Posted by afchic

If we are going to be spreading democracy throughout the world because it is such a great ideology, then we should be trying these guys in our courts here in the US.

But is there really a connection between democracy and the U.S. civilian criminal justice system? France is a democracy, but (as I understand it) has a court system based on the Napoleonic code, whereas the U.S. system is founded on English common law. The justice system (again, within my limited understanding) is quite different.

Then we turn to the issue of a fair trial. Do the military courts provide a fair trial, one in which the rights of the accused are protected? I suppose that they do. I get the impression that the fine people in the U.S. military are careful to protect the rights of prisoners, even under challenging circumstances.

There is also another side to a fair trial. The rights of the accused are on one side. However, the rights of the State - by implication, the rights of the people of our nation - also deserve a fair hearing. Are civilian judges, prosecutors, and judges capable of conducting a trial with such defendants? Is it possible for a civilian court and jury to understand the combat environment - or the mindset of an insurgent?

I have a suspicion that they will find willing listeners within the U.S. prison system. I'm under the impression that Islam is a force within the prison system; is there a possibility that a few might be receptive to the jihadist message? There is a lesson in the actions of Lee Malvo - one we might wish to reflect on.

[SF_BHT]

Originally Posted by magician

In fact, returnees to Saudi Arabia have been routinely released.

It is just a matter of time before one of them picks up a gun again.

There have been several to date that after being returned have gone out and picked up and used arms and 2 that I remember committed suicide as a walking bomb.

[afchic]

Originally Posted by kgoerz

Your right about catching a load of S@&t....You don't shut down POW Camps and release prisoners until THE WAR IS OVER

Unfortuantely our government has not classified them as POWs. If they had this probably would not be the hot button issue it is today.

I am not trying to be a smart ass but first of all how do you have a war against a tactic? When do you predict the War on Terror is going to end? Is it when the United States no longer has to deal with terrorism, or is it when it is abolished from the world as a whole and no nation has to endure it. If so then we must identify what exactly is terrorism. For arguments sake lets say that the definition of terrorism is: The use or threateneduse of violence, directed against victims selected for their symbolic representative value, as a means of instilling anxiety, transmitting one or more messages to, and thereby manipulating the preceptions and behavior of a wider audience.

Is it only terrorism when it is something that we don't like, therefore it is used as a pejorative term? Or is it a tactic and as a tactic it is used not only by our enemies, but us as well? Many throughout the world would classify the firebombing of Japan and Berlin as an act of terrorism, but we do not because we are the ones that did it. As McNamara once said, if we had lost WWII he would have been tried as a war criminal for his part in firebombing Japan. Based on the definition of terrorism above, the bombing of terrorist training camps in Afghanistan can be said to be a terrorist act.

So if we are indeed fighting a war against a tactic, that implies there is no end to such war. So what do we do with these enemy combatants? And if we are justified in holding them, what is to say that our own military personnel will not be held in the same manner by our enemies, not only in this war, but wars of the future.

Additionally, nowhere did I suggest they should be released unless they were found not guilty of the charges brought against them.

I know the QPs have a different perspective on this than I do. And my experiences are no where in the same constellation let alone the same universe as yours. But I have loved ones who are in combat, so this question is just as imperative to me as it is to you all. If this matter was based solely on what is happening on the battlefield then it would not be an issue in my estimation. We would keep on keeping on. But this is now a matter in the political realm, and as much as we may not like it or agree with it, it will not be solved by us in the military. It will be solved in the political arena.

[Sigaba]

Afchic--

You always offer well-argued positions. I agree with your premise that the current methods of handling the detainees is highly problematic. If I had my druthers, the facility would have been closed years ago, the U.S. would not have practiced extreme renditions, and a review board of former POWs, including Senator McCain, would have vetted every interrogation technique.

I respectfully disagree with you on three points.

First, I do not believe the U.S. can benefit politically by incarcerating convicted terrorists in the existing prison system because doing so would draw attention to the fact that our system for holding prisoners is not the best example of a democratic society in action.

It is my understanding that the U.S. Bureau of Prisons determined in the mid 1970s that the American prison system is an unsalvageable failure in its core mission of rehabilitating criminals. From that point forward, the federal prison system was seen as a place to put convicts to punish them.

With this sensibility in place, do we really want prisons to be an international political symbol of the American way? Because of the death penalty, the United States is lambasted by other industrialized nations. During the 1980s, the leftist faction of the anti-apartheid movement gleefully argued that the brutality of the American prison system was exceeded only by South Africa's. Critics of GWOT would quickly bombard the media and the blogosphere with story after story of miscarriages of justice. Unless the evidence was air tight three times over, there would be an endless re-examination of the cases against the convicted.

In intellectual circles, there would be other issues. These issues form my second reason for disagreeing with you.

Thanks to the work of the late Michael Foucault, a French philosopher, many of the same intellectuals and academics who currently berate America's efforts to combat terrorism would have additional 'evidence' to prove their case. Foucault, the founding father of post-structuralism, devoted much of his short life arguing how Western civilization used institutions like prisons to silence legitimate social, political, and cultural dissent.

Criticism informed by the scholarship of Edward Said would also benefit from the incarceration of convicted terrorists in American prisons. Said, an intellectual giant and decent human being, argued effectively that Westerners evaluate the Middle East through a lens that distorts more than it reveals. The implications of this argument raise significant and, as yet, unresolved challenges to many intellectuals and academics who would question the moral legitimacy of trying men (and women) from drastically different cultures in American courts.

Even if the evidence against the terrorists was absolutely air tight, I do not foresee any argument that would win over such critics.

I believe that the U.S. would be better off if it could avoid having to climb into such an intellectual debate. Many academic disciplines in the United States attempted to engage post-structuralism as part of what is known as the Linguistic Turn (or Cultural Turn) in the 1960s. In many cases, but especially history, this effort led to a crisis of legitimacy from which they've not yet recovered.

The response to Said's scholarship, also a part of the linguistic turn, has caused a rift that has disrupted disciplines including English, comparative literature, cultural anthropology, and middle eastern studies.

In short, in classrooms at colleges and university throughout the U.S., undergraduates would ask "what is going on about these terrorists being put in American prisons?" More likely than not, they'd get answer that was aimed more at indoctrination than education.

My third reason for disagreeing with you is that I do not believe the U.S. has maximized other options.

The U.S. has not, for example drawn national and international attention to the increasingly large body of open source documents that show how Salafists view themselves, the Western world, and their own civilization. Information that counters effectively the thesis that terrorism is just a tactic also remains underutilized.

With the publication of the findings of the Terrorists Perspectives Project, and other works published by academic presses, we have publicly available a number of documents in translation that make, in my view, a pretty convincing case that the enemy regards democracy in all of its forms a man-made construct that keeps all men from knowing the will of Allah.

These documents suggest that many of the Salafists believe that terrorism is not only an acceptable tool of jihad but a necessary one because they are engaged in a war of all against all. In many respects, the Salafist theory of warfare is much like the Nazis theory of war.

As Michael Geyer has demonstrated, the Nazi theory of warfare did not simply see organized violence as a means to an end, but the end in and of itself. Somehow, the Nazis believed that Second World War was going to be an experience that freed the German race by cleansing the rest of the world (and most of the Germans as well) with fire so that a new racially pure global order could take hold in the aftermath.*

Similarly, it seems that the Salafists intend to use jihad not simply to expel the West from the Muslim world, but to liberate mankind from the grip of heresy and apostasy In short, if you're not with them, you're against them. If you're against them, you are also a legitimate target.

It is, I believe, this totalizing, no compromise allowed, aspect of Salafist ideology perspective that makes a way of war into a way of life. And I wonder what the American people would think if this information were presented to them through a series of national addresses.

A post script. I agree with those who find Mr. Limbaugh unimpressive. He'll seize upon the least part of an argument, find a flaw, and then trash the whole argument. The first two times, it seems focused and rigorous. After that, not so much.
__________________________________________________ _____________________
*Michael Geyer, "German Strategy in the Age of Machine Warfare, 1919-1945," in Peter Paret, ed., Makers of Modern Strategy, from Machiavelli to the Nuclear Age (Princeton: Princeton University Press, 1986), 527-597.

[Pete]

See - we should have just done it the legal way - shot on the spot.

No problems.