President-elect Barack Obama has confidently pledged to scrub out the blight on America's moral standing that is Guantanamo Bay. Closing the notorious prison is a move the world would eagerly embrace, and the move would immediately distance the new administration from the sinister national security practices of the Bush years. Goodbye torture, hello habeas corpus.
That sure sounds nice. But putting Gitmo’s sordid abuses in our past won't be easy. The legal issues at stake remain with or without the prison, as Matthew Waxman, former deputy assistant secretary of defense for detainee affairs, points out in an interview with Foreign Policy. “The United States will continue to capture, detain, and need to interrogate suspected terrorists long into the future,” Waxman said. “And the bigger question than whether to hold them at Guantanamo or not is one of legal authority. On what legal basis and according to what standards will the United States conduct detentions?”
Trials of “enemy combatants” are another complicated matter, and there’s little consensus on how they should be carried out, according to the New Republic. “Some conservatives argue that civilian courts are too protective of detainee rights or would sacrifice sensitive national security information,” writes Joseph Landau for TNR, while, “civil libertarians reject national-security courts for insufficiently guarding defendants’ rights.”
The proposed creation of national security courts charged solely with trying suspected terrorists is being hotly debated, and Obama is said to be considering the option. University of Utah law professor Amos Guiora is a strong proponent of this idea. In a guest column for Jurist, he writes, “In advocating the establishment of domestic terror courts I am seeking both a legal and practical solution to the continued detention of thousands of ‘post 9/11 detainees.’” Guiora suggests the courts as an ongoing solution to a problem that extends far beyond Guantanamo Bay. “Guantanamo Bay is but one detention facility,” Guiora writes.
The Christian Science Monitor describes the new court model as similar to one that was used in Israel, where trials were “conducted behind closed doors to protect intelligence sources and methods.” According to CSM, “Instead of using military judges, such a court should be staffed by civilian federal judges, preserving the separation of powers,” but protecting intelligence information. Guiora told CSM, “Source-protection is a must in the context of counterterrorism.” He said, “Without sources, there is no intelligence. Without intelligence, there is no counterterrorism.”
But not everyone thinks a specialized terror court is a good idea, or necessary. Also for Jurist, Washington University law professor Leila Nadya Sadat notes the following:
Although advocates of creating a new set of courts to try terror suspects are no doubt sincere in trying to “fix” the problem of what to do with the detainees at Guantanamo Bay, let’s remember that at least some of these folks are the ones who gave the advice that supported the practice of rendition and the establishment of Guantanamo Bay in the first place. Indeed, a close look at their proposals suggests a disregard for time-tested rules of law eerily similar to the lawyering style that has pervaded the administration during the past eight years.... The federal courts, and regularly constituted military courts, are more than capable of trying individuals accused of terrorism and violations of the laws and customs of war, as they have done so before.
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