Sunday, January 25, 2009


There's a young lady in New York I have had the pleasure of blogging with for a few years. She's a third year law student right now and we've been having a mini debate concerning the detainees in Guantanamo.

I thought I'd copy some of my comments to her and her replies. If you click here you can read her initial post that sparked the debate. She is against closing the facility. I as most of my readers know am in favor of it's being closed down.

My first comment:
In seven years there's been two convictions with over 600 arrested and detained without charge or access to attorneys. Studying law I'd think you'd find that to be a problem. Jose Padilla an American Citizen was convicted of making a phone call to Egypt complaining how hard Arabic was to learn and having left a finger print on a blank document reportedly to be an application to join an Ashram. The other one was Osama Ben Laden's driver and was convicted on a charge so vague and general that could be leveled at anyone living in an enemy country. Most legal scholars were appalled at the charge and conviction, not just the ACLU. That is the best Bush could come up with. What else is Obama to do, but install some sanity to the situation. It should be priority number one.
I know you won't agree with me.

Her first reply:
They recently wanted to release a big group of prisoners only to find that no country wants to take them in. What are they supposed to do with them?

My response:

If you look at every problem analyze its root cause and then correct that the problem will be fixed. But when you're up to your elbows in alligators it's hard to remember you should have drained the swamp.

Obama's up to his elbows in Gitmo. The New York Times today already has an editorial saying he's doing it wrong. The problem is that with this mess there's no right way to do it. Kinda why I'm glad I don't have to make this decision. What I do know is that it never should have been set up in the first place, it's cost more that it was worth and instead of harming terrorists it created even more, and it needs to be shut down. 
Sending David Iglesias there is a good step in the right direction. A good Republican lawyer, thrown under the bus for being competent in 2007.

Her reply:

 Why shouldn't it have been set up in the first place? And what should have been done instead?

My reply to her:

Treating them as prisoner's of war and accorded them the protections of the Geneva Convention, which we signed. The problem that we're facing is that they can't be tried in any court recognized by the International Community or under our Constitution, because evidence gained under duress is inadmissible. Even in Military Tribunals, which is exactly what the lead prosecutor has stated in the last few weeks concerning a number of the more notorious of the internees. As Edmund Burke said, "The problem with being outside the law (which is what our detention centers have been) is that you lose the protection of the law."
Many of the these men need to spend the rest of their lives behind bars, but the Magna Charta established for Common Law the right to a trial by jury. The Habeas Corpus Act of 1645 and our Constitution's guarantee of due process of law have not been observed. You can't erase these abuses and hold any sort of trial that means anything, and to continue to hold these men without charge or trial amounts to the use of a Bill Of Attainder, which is expressly denied to the President, Congress and States in the Constitution under powers denied.
As much as we may not like it, under Habeas Corpus we may need to just let them go if justice is to truly prevail.

Her reply has been:

Whether they are covered by the Geneva Conventions is a disputable issue... and whether the evidence was gained under duress is yet to be proven conclusively. In fact, at least one detainee, who is from China, does not want to return for fear of being tortured. Moreover, over 60 detainees who were cleared for release have nowhere to go since no country wants to claim them.

I am awaiting her approval to post her comments before offering any more responses. It's been given. My thanks to her.

My response:
When you create a limbo legal system that does place those arrested in a limbo situation. And as you've said these people are in limbo. We don't want to keep them , no one wants to take them back. When they get back if they wished us harm originally they will have even greater incentive to do more harm. If they were merely caught up in the rush to grab people and had no more than the normal Anti-western feelings common to their country, we've only succeeded in making them more of an enemy.
Politically an apology and compensation would be suicide.
Diplomatically there needs to be something worked out for their country's to take them back.
If as the case of the man from China fearing torture should he be sent back, do we allow him residence on that basis. Boy talk about a can of worms that would be.
This will have to be sorted out by the State Department and Attorney General. Needless to say I do not envy them their job.

I actually thought my last reply would make a good post by itself, but thought putting it into context would be better. If we have any further responses I'll post them too.

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