By William Fisher
The Pentagon says there are up to 100 prisoners in Guantanamo who are too dangerous to release but who cannot be tried in U.S. federal courts.
They cannot be tried because much of the evidence against them is based on hearsay, which judges would likely refuse to allow. Or because they were held illegally as “enemy combatants” while being stripped of any rights they may have had. Or because what we know about these people and their plans was learned through the CIA’s “enhanced interrogation techniques” (have you ever heard of a less descriptive euphemism?). Chances are most Federal judges would also find such “evidence” inadmissible.
Former Vice President Cheney tells us the government’s use of “enhanced interrogation techniques” (including waterboarding) was NOT torture (didn’t the memos from the Justice Department’s Office of Legal Counsel tell us so?). He also claims these techniques yielded actionable intelligence that disrupted numerous terrorist plots to kill more Americans.
So far, we have not seen a shred of evidence to prove that claim. We have only the word of the former Veep. And, given the magnitude of the lies he and the rest of the Bushies have sold us over the past eight years, why on earth would any of us believe a single thing Cheney had to say?
The result of W’s presidential power-grab is that we are now faced with the prospect of being unable to prosecute accused terrorists in our Federal justice system, or of having to obtain plea deals that will greatly lighten the sentences meted out to these miscreants.
The al-Marri case illustrates the point. As noted in a Washington Post editorial this morning, “Nearly six years ago, President George W. Bush declared Ali Saleh Kahlah al-Marri an enemy combatant and had him swept out of federal court and into a U.S. Navy brig so he could be interrogated without the legal protections afforded by the criminal justice system. Bush said the Qatari national, arrested as a material witness in Illinois in December 2001, possessed critical intelligence that ‘would aid U.S. efforts to prevent attacks by al-Qaeda on the United States’."
The consequence of Bush’s action? Instead of being put on trial for providing material support for terrorism – and facing a 30-year prison sentence – Marri was allowed to plead guilty only to conspiracy to provide material support, which carries a 15-year sentence (and even less if he is given credit for the five years he spent in the Navy brig).
Why did the Justice Department have to accept this plea deal?
Because government lawyers were concerned about the release of classified evidence and the impact of possible testimony regarding Marri's mental state after prolonged solitary confinement.
Because he was interrogated using those famous “enhanced interrogation techniques” --defense lawyers said in court papers that interrogators threatened Marri, telling him he would be transferred to Saudi Arabia or Egypt, where he would be sodomized and forced to watch the rape of his wife.
And because Marri was allegedly recruited to come to the U.S. by no less a storied figure than Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks, to organize a terrorist sleeper cell. KSM would have been a likely witness for Marri if the case were ever to find its way into a courtroom.
And speaking of KSM, it is also questionable that he will ever see the inside of a Federal courtroom. That’s not because anyone’s afraid that a jury would be sympathetic to him, but because of the headlines he would make by describing his own torture in U.S. custody. It’s likely that KSM and many other defendants would use the courts as platforms from which to expose yet more sensational details about their treatment.
So what to do with the hundred or so detainees at Guantanamo who the Pentagon says are too dangerous to release but who, like Marri and probably KSM, cannot be tried in civilian courts?
The Obama Administration was quick to declare the “enemy combatant” designation as illegal and to order an end to “enhanced interrogation techniques.” But the genie is out of the bottle and can’t be stuffed back in. The likely consequence is that most of the victims of these techniques will never be tried in civilian courts – even though our criminal justice system is demonstrably well-equipped to try them.
So what federal prosecutors are left with now is the grim reality of trying to reach plea deals with the accused, or freeing them, or trying them in settings where the rules of evidence are less stringent.
Less stringent? Read Military Commissions 2.0. -- some tweaked version of the totally failed system that produced exactly two convictions in eight years.
Defense Secretary Robert M. Gates has acknowledged that a return the commissions remains an option. But most legal scholars and human rights advocates say there is no amount of tweaking that will repair this deeply flawed system.
And, as if this Obama Administration legal migraine wasn’t enough, it is also having to deal with the question of where to put these prisoners as they await trial?
Gates has already asked Congress for $50 million to build a new prison – a new GITMO.
But where? Virtually every voice in Congress is already belting out the NIMBY aria. You can bet that every member of Congress will be running, not walking, away from the opportunity to make an earmark out of this new construction project.
Mercifully, George W. Bush couldn’t run for reelection last November. But he still managed to shoot the Obama Administration – and all the rest of us -- in the foot.