16 Apr John Bellinger on Continuity and Change in Detention Policy
Former DOS Legal Adviser (and a path-breaking guest blogger here at OJ when in that role a couple of years ago) John Bellinger has a short opinion column out at the CFR site, April 14, 2010 (corrected link, I hope!), discussing continuity and change in US detention policy on counterterrorism. John takes up a range of issues, from trials to repatriation and more, and concludes that there is mostly continuity with the second Bush term. I agree. It is a good, short, robust summary of the issues involved.
(Update: In addition to John’s piece, Rick Pildes and David Golove have a calm, reasoned discussion at Balkinization on ways to deal with terrorism related detentions and trials. They call for an approach that mingles aspects of criminal law and armed conflict law. They emphasize the need for a legislated system. It is true, of course, that I am an advocate of a national security court approach to both detention and trial, so I am predisposed to some form of the “melding” view, and am also strongly committed to legislating a system for all this — but regardless of where you start, I think this is an excellent discussion.)
Ken- both links took me to the CFR site.
Thought you would want to fix it.
Trying … not with great success. The NYT column that someone pointed me to earlier is not the new thing – it is John Bellinger on April 14, 2010. I’ll try again!
I do find it quite something that the emphasis on continuity is described in terms of the second part of the Bush Administration. Wouldn’t it be more exact to say that it dates from September 2006 when Bush announced closing the CIA black sites? And the point is that pretty much from that point, Bush punted this question to the next administration.
And the essence of the problem of prosecution whatever the forum is the evidence from torture and treatment of those detained. And the ambiguity about Geneva is directly related to the late 2001 decisions to step completely out of that paradigm to permit torture and ersatz military commissions for conveyor belt justice. To step back into that system is to indict those who operated from 2001 forward – a political difficult problem for the current Administration though not one for the average American citizen who can read through the smoke screens.
Also, the paean being made to the military judges in the military commissions is a bit misplaced as the first issue before the military justice in the Hamdan case was to what extent the other protections of the Constitution applied in Gitmo and the military judge punted that one as did the DC Circuit in making a de jure/de facto distinction for the Insular Cases that simply does not hold water.
The federal court judges incentives as lifelong appointed Article III judges is to provide a process that honors their appointment – that’s what the Padilla court judge discussed when we discussed the hybrid national security court approach here at Toledo.
On those who are so enamored of a national security court, I again say that creating a court to allow tortured information to be used is to denature our country. And that is the essence of each of these hybrid court proposals – to waterdown from either the federal court or court-martial model for third class justice for foreigners. And it threatens American citizen rights as it denatures our system in the classic way that fear based judging in specialized courts (tribunal d’exception) denatures systems as has been amply demonstrated in studies of these systems all over the world.
Best,
Ben
Here’s the link to the Pildes & Golove post at Balkinization referenced by Ken.
http://balkin.blogspot.com/2010/04/new-directions-in-terrorism-policy.html