Try the Detainees

by Glenn Sulmasy

There has been excellent dialogue and debate on this difficult issue over the past day or so. One thing is clear, whoever wins the next Presidential election will be forced to confront the issue of “preventative detention” almost immediately upon taking office on January 20, 2009.

Unlike my erudite colleagues, my simple mind sees the answer this way: try the detainees, all of them. Because this is a unique armed conflict, traditional methods of war detention are really not available – particularly as a matter of policy. We simply can not close Gitmo, and bring all of the associated problems and issues of detention into the United States. To me, preventative detention has been the real problem in Gitmo. We can not hold people indefinitely without trying them in this war. Certainly, the military commission process, in the past, has never been used for this purpose. Instead, the political branches should be working long and hard at constructing, as Ben suggests, a new court system that might better capture the nature of the threat – a mix of the law enforcement model and warfare tribuals. In legislatively creating the new court, there is the opportunity to have a new court system capture all sides of the debate. It could be the answer to achieving a real balance between the desire to promote the rule of law while still ensuring national security is paramount. The key to me, however, is that such a system must be adjudicatory in nature and function.

I believe we will be discussing the possibility of a new court over the next day or so, but it seems if properly constructed, such an Article III, civilian run, new system might be the answer to issues of habeas stemming from the Boumediene case, preventative detention, coercive interrogation, trials etc.

2 Responses

  1. It is always good to see my good friend Glenn Sulmasy in cyberspace and I send you my best regards.  I am a proponent also of keeping it simple on this stuff so that people can do there jobs.

    On trying detainees – four things

    1) Some detainees fit clearly GCIII POW Article 4 categories (do not want to rehash the debate on the Taliban in Afghanistan or Al-Qaeda parts in Afghanistan here but just trying to make the point) and as POW’s they can and should be held til the end of hostilities or until the US determines they are no longer a threat.

    2) Trying of security detainees (i.e. GCIV Article 4 detainees who are not POW’s) sure but under which domestic law?  If they are in the combat zone and the courts are not open I think we end up with military commissions in that place.  If they are brought back by us stateside the necessity of military commissions does not seem as high as in the traditional setting so put them into ordinary courts – not some special court.  Ok, if you want to have such cases put in one federal court of limited jurisdiction that would seem OK.  But, I would imagine these cases would flow to the DC Circuit in any event under some obscure jurisdictional provisiong about these kind of things abroad of which I am not aware of the precise cite but someone probably is because of the nature of the capture and holding.

    3) Trying of alleged bad people in the United States not captured on some far away battlefield.  What’s wrong with having the Toledo case in Toledo like the US v. Amawi case this summer in the Northern District Federal Court.  Some might think a dicey case (someone invites you to go to a shooting range and that becomes an act in furtherance of a conspiracy) but it sure seemed the process was as fair as we get in the best of our judicial system.

    4) Trying of 1, 2, or 3 for war crimes type violations – stateside in the ordinary courts – DC Circuit for all nonlocals.  Local circuit for locals.

    1, 2, 3, 4 – Why do we need a national security court anymore?

    The only reason I see is that we want to create a separate and unequal third class track for foreigners through which we can subject them to interrogation under a policy of cruelty and convict them after they provide unreliable coerced evidence.

    I encourage you all to read Judge James Robertson’s (USDC-DC) July 18, 2008 memorandum order on Hamdan and take a gander at the paragraph comparing the MCA Hamdan faces with Chambers v/ Florida (1940). 

    Then read the first paragraph of Chambers v/ Florida.

    I hope you are as haunted by Justice Black speaking for the court as I was.  Robertson forces us to confront animus towards these bad guys that is beneath us.


  2. Actually, you don’t need military commissions in the combat zone either: the military has jurisdiction under the UCMJ (Title 10, USC). There isn’t any significant jurisdictional gap between Title 10 and Title 18, they overlap almost completely. [Aside — this is a topic I’d love to hear Geoff Corn comment on.]

    What the facts show is that the only real purpose of the commissions was to subvert the law for criminal purposes.

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