Greenwald and Landau on Guantanamo Detainees
posted by Frank Pasquale
Glenn Greenwald put the recent release of five Guantanamo detainees in a chilling light:
The five men ordered released today have been imprisoned in a cage by the Bush administration for 7 straight years without being charged with any crimes and without there being any credible evidence that they did anything wrong. If the members of Congress who voted for the Military Commissions Act had their way, or if the four Supreme Court Justices in the Boumediene minority had theirs, the Bush administration would nonetheless have been empowered to keep them encaged indefinitely, for the rest of their lives if desired, without ever having to charge them with any crime or allow them to step foot into a courtroom to petition for habeas corpus.
It might seem like the whole system should be shut down immediately. But Joseph Landau has a very interesting article on the tricky legal and policy issues raised by the potential closing of Guantanamo Bay:
[S]even years after 9/11, there’s little agreement on how the U.S. should try “enemy combatants,” delaying the ability to close Guantanamo down. Some conservatives argue that civilian courts are too protective of detainee rights or would sacrifice sensitive national security information; civil libertarians reject national-security courts for insufficiently guarding defendants’ rights. Many of the detainees’ lawyers doubt that their clients’ cases will wind up in the civilian courts. . . .
[A]round 60 detainees who have essentially been cleared of all terror charges remain at Guantanamo because they, too, cannot be returned to their home countries. The United States will not send a detainee to a country where he risks persecution or torture; the Convention Against Torture, which the U.S. signed onto in 1988, prohibits it.
[Many] Guantanamo experts believe that our allies won’t accept Guantanamo detainees–even those cleared of all terror charges–as long as the U.S. refuses to do the same. Emi MacLean, a staff attorney at the Center for Constitutional Rights, which is coordinating the federal litigation on behalf of Guantanamo detainees, said, “What we hear from European governments is they are willing to help the United States as long as there’s a demonstration that the U.S. is willing to pick up some of the pieces. The U.S. has to do its part as well.” But advocating for the transfer of Guantanamo detainees to American prisons is politically dangerous.
Like much else in the Bush legacy, Guantanamo will be extraordinarily difficult to unwind.
November 22, 2008 at 12:22 pm
Posted in: Constitutional Law, Criminal Procedure
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Responses (2)
Mark Edwards - November 22, 2008 at 1:40 pm
Chilling is exactly the right word.
Sometimes it’s difficult not to despair over all the damage this administration has done: political, economic and legal. It will take generations to undo it.
Matt - November 22, 2008 at 3:03 pm
“The United States will not send a detainee to a country where he risks persecution or torture; the Convention Against Torture, which the U.S. signed onto in 1988, prohibits it.”
The irony in this sentence is almost too much to comment on since, of course, we have been torturing for some years now (probably even some of these people), and we have been all too willing to send detainees to countries with the specific intent that they be tortured there so long as we received “assurances” that this would not happen. Making such a gross mockery of the Convention Against Torture is perhaps not the worst crime of the Bush administration but certainly is a serious one.
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